Gebhardt v. American Car & Foundry Co.

• Decision Date: 07 June 1927
• Docket Number: No. 19751.,19751.
• Court: Missouri Court of Appeals
• Parties: GEBHARDT v. AMERICAN CAR & FOUNDRY CO.

296 S.W. 446

GEBHARDT v. AMERICAN CAR & FOUNDRY CO.

No. 19751.

St. Louis Court of Appeals. Missouri.

June 7, 1927.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Nick Gebhardt against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis, for appellant.

Jesse T. Friday, of St. Louis, for respondent.

DAUBS, P. J.

This is an action for damages for personal injuries sustained by plaintiff while engaged in the service of the defendant. Plaintiff recovered a verdict and judgment for $1,500, and defendant appeals.

The petition alleges five grounds of negligence, three of which were withdrawn by instructions given at the request of the defendant. The two remaining are that the defendant negligently and carelessly ordered and directed plaintiff to hold a short piece of steel with his right hand behind a lever or guard of a machine, in order to hold it firmly against the top of the table while same was being cut, when the defendant knew or could have known that, in so requiring plaintiff to hold this piece of steel behind the lever or guard against the top of the table while the steel was being cut, plaintiff was likely thereby to be injured; and, second, defendant failed to show reasonable care to furnish plaintiff with a reasonably safe method in which to do his work of holding such piece of steel firmly upon the table while it was being cut by a descending blade, when the defendant knew or could have known that, in requiring plaintiff to use his hand to hold such short piece of steel upon the table behind the lever or guard thereof while said piece of steel was being struck by a descending knife, plaintiff was likely to be injured thereby.

The answer is a general denial, with a plea of contributory negligence.

The assignments of error are that the demurrer to the evidence should have been sustained; that the giving of plaintiff's instructions 1 and 2 are erroneous; and, thirdly, that the verdict is excessive.

On the first assignment of error the argument of the defendant is that plaintiff's own evidence as to how the injury occurred is "squarely contradicted by the physical facts and the operation of the machine," and that, therefore, since the physical facts demonstrate that plaintiff's testimony cannot be true, the court should not have treated such testimony as having any probative value whatsoever.

Plaintiff, on his part, testified that on February 25, 1924, he was employed by defendant in the blacksmith shop. When he started to work on that day, the foreman told him to cut round iron bars, about 20 feet in length, into pieces about 2 feet in length. The machine was operated by electricity and the upper blade moved up and down. There was a foot pedal which controlled the movement of the blade, and this was kept down by placing a piece of iron across the foot pedal so that the blade would move continuously. Photographs are before us that give the appearance of the machine. On the west side of the machine, as it was then placed, there was a large perpendicular piece of iron somewhat in the shape of a leg and foot, called a "pressure bar" or "guard." Iron bars, according to plaintiff's evidence, would be pushed from the west side through, or rather under, the guard, and then between the blades, the blades running north and south, until the bar would reach a gauge on the east side which would indicate the proper length that the iron bars were to be cut. The upper blade passed along the east side of the lower shear blade, which was stationary, so that the upper blade in descending would avoid striking the lower blade moving up and down slightly to the east of it and so that the material would not be actually cut in the shearing, but, rather, would be pinched apart, operating very much on the order of scissors.

Plaintiff, as already said, testified that after he was using the machine on this occasion the foot lever was not being used, same having been fastened down so that the machine would operate continuously. He said that the foreman ordered him to cut the iron bars reaching the length from the gauge to the blades, which was about 2 feet. The foreman had just finished cutting up a whole bar, and when the last cut was to be made there were from 2 to 4 inches left over the length of the 2-foot piece, and the foreman placed the last piece in the machine so that his hand was between the shears and the guard or pressure bar which we have described, there being no extension of the bar to be cut beyond or outside of the pressure bar. This he did to hold down the small piece of the bar while the last cut was made. After the foreman had demonstrated to plaintiff how the cut should be made, plaintiff said he continued to cut the bars as told. The foreman then left, and plaintiff said he thought it would be safer to mark the last bar with chalk indicating where the cut was to be made by thrusting the short end into the shear and cutting it off at the chalk line and grasping the long end which remained on the outside of the pressure bar or guard. Plaintiff testified that he continued to work in this manner for some time until the foreman returned. When the foreman came back, he observed the manner in which plaintiff was cutting the last piece and objected to that method, telling plaintiff that he should do it ha the manner in which he had directed him. The foreman then again showed plaintiff how he wanted the last piece cut; that is, by grasping the short end of the last piece and thrusting the long end into the machine so that the grasp would be between the shears and the pressure guard. Plaintiff testified that following the foreman's instruction, he made all the cuts of the bar except the last one; that he then stepped in front of the...