Gehbauer v. J. Hahn Bakery Co.

CourtCourt of Appeal of Missouri (US)
Citation285 S.W. 170
Docket NumberNo. 19451.,19451.
PartiesGEHBAUER v. J. HAHN BAKERY CO.
Decision Date01 June 1926

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by John Gehbauer against the J. Hahn Bakery Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wilfley, Williams, McIntyre & Nelson, Earl M. Pirkey, and Wendell Berry, all of St. Louis, for appellant.

Holland R. Polak, of St. Louis, for respondent.

BENNICK, C.

This is an action for personal injuries sustained by plaintiff while in the employ of defendant. The verdict of the jury was for plaintiff in the sum of $6,250, and judgment was rendered thereon, from which defendant has appealed.

The alleged negligence charged against defendant in the petition was as follows:

"That the defendant carelessly and negligently failed to furnish plaintiff with safe and proper tools, appliances, and equipment with which to perform the work assigned him, as hereinafter more fully stated.

"Plaintiff states that at the time complained of, by reason of his employment as aforesaid and by reason of being directed by the defendant and its foreman, he was required to remove the wooden plug from the boiler pipe aforesaid by means of the Stillson wrench referred to, and was required, directed, and instructed by said defendant and defendant's foreman to first fasten the claws of the said wrench to the wooden plug and then repeatedly strike said wrench with a hammer; and plaintiff states that the wrench referred to was highly tempered and was too brittle for said work in that by reason of the high temper and consequent brittleness of said wrench when it was struck by said hammer, as the plaintiff was required and directed to do, particles and slivers from same were liable to suddenly break off and fly and be thrown against and into the face and eyes of persons engaged in so striking said wrench with the aforesaid hammer, and particularly this plaintiff, all of which facts the defendant well knew, or by the exercise of ordinary care could have known, but which facts this plaintiff had no means of knowing and did not know.

"Plaintiff states that at the time complained of he was inexperienced and unskilled in the work required of him, and had no means of knowing and did not know that said wrench was of the temper and brittleness aforesaid, and did not know of the likelihood of particles and slivers from same breaking off and flying into his face and eyes when being struck by a hammer, all of which facts the defendant well knew, or by the exercise of ordinary care could have known, and that it thereby became the duty of defendant to warn him of such danger, but that defendant failed and neglected to so warn him. "Plaintiff states that the defendant failed, neglected, and refused to furnish him with goggles for the protection of his eyes while engaged as aforesaid, well knowing that the failure so to do would be likely to cause his eyes to be injured and the sight destroyed."

The answer was a general denial coupled with pleas of contributory negligence and assumption of risk. The reply was conventional.

Plaintiff had been in defendant's employ for about ten years. He was first hired as a cabinet maker, and as such made showcases, counters, bread boxes, and street signs. He did this work for two years, at the end of which time defendant assigned him to the task of repairing the electrical appliances. For some time before plaintiff was injured he had attended to general repairs of a minor nature throughout the bakery.

When plaintiff was first employed as a cabinet maker, he agreed to furnish his own tools for use in such work. However, when his duties were changed, he did not furnish the tools for the other work. Such other tools as he needed were purchased from a hardware store upon an order from defendant's office and were paid for by defendant. At the time plaintiff received his injury he was using a Stillson wrench. Six or seven years prior thereto he had been ordered by Mr. Hahn to purchase this wrench for defendant from the Doerner Plumbing Company. Thereafter it was kept in the shop, and plaintiff did not have the exclusive use of it. Plaintiff testified that he knew nothing about metals.

Plaintiff was injured on November 21, 1922. Some seven or eight days prior thereto he had taken a half union off of the end of a steam pipe leading to one of defendant's boilers. It was his intention to put a cap on one end of the pipe, but Mr. Hahn, who was present, suggested that a wooden plug be used instead. Plaintiff objected to this for the reason that the wooden plug would be difficult to remove after it had become swollen, and inquired of Mr. Hahn how he should remove it. Mr. Hahn replied: "You take this Stillson wrench and just grab this thing and hit it with the hammer, and it is bound to come." At the time his injury was received plaintiff was attempting to remove the wooden plug with the wrench in the manner that Mr. Hahn had directed. He held the wrench in his left hand and struck the end of it five or six licks with a hammer which he was holding in his right hand. Something struck plaintiff in his left eye, but he did not know what it was. While on the witness stand plaintiff identified the wrench which he was using and made pencil marks at the point where he struck it.

On November 24, 1922, an X-ray picture of plaintiff's left eye was taken by Dr. Heinrichs, which disclosed a piece of steel located in the back of the eyeball. Dr. Heinrichs also used a magnet and discovered that the foreign body was of a character that the magnet would draw. A second X-ray picture was taken by Dr. Meisenbach on December 3, 1922, which in turn disclosed the foreign body in the eyeball. A third X-ray picture was made by Dr. Howard on "February 16, 1923, which also showed the foreign body. Plaintiff was taken to the hospital, and, after certain preliminary treatments had proved unsuccessful, the eyeball was removed on March 3, 1923.

An expert witness for plaintiff examined the wrench in May, 1923, and again at the trial of the case, and testified that there were certain chips out of the wrench, one at the highest point of the arch, a second about a quarter of an inch outside of the gripping surface of the claw, and a third away from the arch, very near the gripping surface and about in line with the staff of the claw. The witness found a chip missing at the point on the wrench where plaintiff had made the pencil marks. There were also some indentations or hammer marks at the same point.

The expert testified that the fact that there were chips out of the wrench very close to indentations from blows of the hammer indicated that the wrench was of poor material, brittle at some points and malleable at others. This condition disclosed a lack of uniformity of structure, which was termed nonhomegeneity in metallurgy. Such condition could have been caused by an improper mixture of steel before the product was formed into the wrench, or, after the wrench was formed and ready to be tempered, it could have been chilled or burned in the tempering forms.

This particular wrench was not a true Stillson, but was a "hybrid variety of some sort" which bore no mark by which the name of the manufacturer could be determined.

Defendant's evidence disclosed that when a Stillson wrench was struck with a hammer, pieces of metal were liable to fly from the wrench. Mr. Hahn himself admitted on cross-examination that he was aware of this fact.

Defendant first assigns as error the action of the court in overruling its demurrer offered at the close of plaintiff's case. However, inasmuch as defendant did not stand on its demurrer but put in its own evidence, the correctness of the court's ruling on the last demurrer is the only point to be reviewed. Canty v. Halpin, 294 Mo. 96, 242 S. W. 94; Burton v. Holman, 288 Mo. 70, 231 S. W. 630; Simpson v. Wells, 292 Mo. 301, 237 S. W. 520; Kaemmerer v. Wells, 299 Mo. 249, 252 S. W. 730; Melican v. Whitlow Construction Co. (Mo. Sup.) 278 S. W. 361; Larkin v. Wells (Mo. App.) 278 S. W. 1087. This point is appropriately raised by defendant's second assignment of error.

The assignment of negligence having to do with the failure to furnish goggles was withdrawn from the consideration of the jury by the court. Plaintiff voluntarily abandoned the assignment as to the failure to warn. This left the case for submission to the jury upon defendant's alleged negligence in furnishing plaintiff a wrench which was highly tempered and brittle, and in directing and instructing him to fasten the wrench to the wooden plug and then strike the wrench with the hammer. In determining whether or not there was substantial evidence to justify such submission of the case to the jury, we are mindful of the rule that on defendant's demurrer at the close of the entire case plaintiff must be given the benefit of all testimony that has been adduced in his behalf and of any favorable testimony that has been given by defendant's witnesses, in addition to which he must be allowed the benefit of reasonable inferences of fact on all the proof. Stauffer v. Met. St. Ry., 243 Mo. 305, 147 S. W. 1032; Williams v. K. 0. Southern R. Co., 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Pullen v. Hart, 293 Mo. 61, 238 S. W. 437; Peters v. Lusk, 200 Mo. App. 372, 206 S. W. 250; Watts v. St. Joseph Lead Co. (Mo. App.) 243 S. W. 439; Wise v. Worthington (Mo. App.) 270 S. W. 151; Larkin v. Wells, supra.

The evidence, viewed in the light of the above rule, discloses that plaintiff was injured while attempting to remove the wooden plug in the manner directed by Mr. Hahn. Defendant argues, however, that no case was made for the jury for the reason (among others) that there was no showing that the foreign body which injured plaintiff's eye was a particle of steel as alleged in the petition. In this connection we are...

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