Glover v. Kansas City Nut & Bolt Co.

• Decision Date: 12 December 1899
• Citation: 153 Mo. 327,55 S.W. 88
• Court: Missouri Supreme Court
• Parties: GLOVER v. KANSAS CITY NUT & BOLT CO.

55 S.W. 88

153 Mo. 327

GLOVER v. KANSAS CITY NUT & BOLT CO.

Supreme Court of Missouri, Division No. 1.

December 12, 1899.

MASTER AND SERVANT — NEGLIGENCE — EVIDENCE — SUBMISSION TO JURY — ACCIDENT — ASSUMPTION OF RISK.

1. Plaintiff was assistant to an operator of a machine used for cutting iron. Just before the accident the operator passed between plaintiff, who was pulling scrap iron out of a pile, and placing it convenient to the operator's hands, and the machine, to start the machine. He did so with his back to plaintiff, and, within two seconds after he passed, the plaintiff stumbled while pulling iron from the pile, and placed his hands between the shears the first time they came down after being started, cutting off his fingers. It was no part of plaintiff's business to place his hands on the machine or near the shears. Held, not to justify the submission to the jury of the question as to whether there was a sufficient length of time to have enabled the operator to have seen the danger by the exercise of ordinary care before starting the shears.

2. It was not negligence on the part of the operator to start the machine without notice to plaintiff.

3. The liability of such an accident happening was a risk plaintiff assumed as incident to his employment.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by Joseph Glover, by his next friend, against the Kansas City Nut & Bolt Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The plaintiff, a minor, aged 14 years, sues the defendant for personal injuries sustained by him on the 18th of September, 1895, while employed by it as a helper to the operator of a machine called "shears," used for cutting scrap iron previous to its manufacture into nuts and bolts. The petition specifies five grounds of negligence by defendant, as follows: (1) In employing a youth of plaintiff's age and inexperience to perform dangerous work. (2) Failure to caution plaintiff as to the danger of the machinery and the work to be done by him. (3) Allowing the scrap iron to be piled so near to the machine as to make it dangerous for the plaintiff to work in the space between the two. (4) Employing and retaining in its employ a negligent, reckless, and incompetent operator to run the machine. (5) Negligence of the operator in starting the machine without notice to the plaintiff. The record discloses that the machine is of very simple design and construction, being simply a pair of shears or scissors used for cutting scrap iron. The lower blade is stationary, while the upper blade is raised about five or six inches, and then lowered by steam power applied by means of a belt, while a lever starts or stops the machine. The plaintiff, a bright and intelligent boy of 14 years of age, who had previously worked in another department of the defendant's shop, was employed by the defendant's manager two or three days before the accident, and assigned to work with the operator of this machine, his duty being to take pieces of scrap iron from the pile near the machine, and place them within reach of the operator of the machine, and to remove the pieces into which the iron had been cut by the machine. The machine, with its foundation, was about three or four feet in height, the pile of scrap iron around the machine was six or seven feet in height, and there was a space of two or three feet between the pile of scrap iron and the machine; and plaintiff and the operator stood in this space to work, the plaintiff usually on one side of the machine, and the operator on the other. On the morning of the accident the machine had not yet been put in motion, but by direction of the operator the plaintiff was engaged in taking pieces of scrap iron from the pile, and placing them in a convenient place to be in easy reach of the operator, and the operator was engaged in oiling the machine. About two seconds before the accident the operator passed between the plaintiff and the machine, in the space so left between the pile of iron and the machine, and, with his back to the plaintiff, immediately took hold of the lever, started the machine, and with the first descent of the upper blade of the shears the plaintiff's thumb and three fingers of his left hand were cut off. We will let the plaintiff and the operator tell how the accident occurred.

Plaintiff's version is as follows: "Q. You knew he was going to start up as soon as he got through? A. He didn't have any certain time to be through. Q. He didn't have any certain time, but, after he got through, he would start it up? A. Yes, sir; and then I would go around on the other side. This place where the scissors came was four feet above the floor where I laid this iron. There was a space as large as two feet between the framework that it stood on and the pile that I got iron off of. The pile was east of the machinery. When I was getting the iron down, I had my back to the machine. I don't really know how I did get my hand on there. If I had known, I would not have put it under. Q. You had your deposition taken, did you not? A. Yes, sir. Q. When your deposition was taken, you told about it before a notary public? A. Yes, sir. Q. Were you asked these questions, and did you make these answers: `Q. Now, what was the position you were standing in at the time you got your fingers cut off? A. Why, I was standing with my face towards the east, and pulling iron for him to cut, and I think as I pulled on the iron that the piece I was trying to get out was tight, and I think I pulled it, and went to fall; and caught my hand on the shear blade.' Q. Did you say that? A. Yes, sir; I said that. Q. Is that right? A. It might have been that way. I don't know exactly how I did get it there. Q. Is that the way it occurred? A. I don't know whether it was that way or not. Q. You say you said this? A. I said it. Q. Is that right? A. It might have been that way. I don't know exactly how I did get it there. Q. Is that the way it occurred? A. I say I don't know whether it was that way or not. Q. You said this? A. I said it; you see it there. Q. Didn't you say that? If you don't understand it let me read it. Do you understand it? A. Yes, sir; I understand it. Q. You said that when you testified before? A. Yes, sir. Q. Is that the way it occurred? A. I didn't know exactly how it occurred at the time. That is the way I stated it. Q. Can you tell the jury how you got your hands on the shears? A. I got my hands there pulling iron some way. Q. You told me you didn't have anything to do with the shears? A. No, sir. Q. You had no business to have your hands up there? A. No, sir. Q. How did you get your hands on the place where the shears was? Didn't you slip, and fall over, catch your hand there, just as the shears came down? A. It was that way some way. Q. Was that the way it occurred? A. That is the way it must have been. Q. How did you come to stumble? A. I never stumbled. I was pulling iron out of the pile. I will suppose this table is the place where the shears came down. I had my back to it, looking out towards the iron pile. That is the way I was standing, reaching right straight out to pull a piece of iron out of the side. I was facing the slope of the pile that was east. My side was right to this framework that this cutter was on. I was on the south side of it. My side would be to the shears if it faced east. I was pulling out a piece of iron right out of the side of the pile for the purpose of laying it down on the floor. The piece was tight, and I was pulling on it, and in some way or another my hand lighted on the shears, and just as it lighted, why, that thing came down. I had not had it there very long. Just as I got it there the thing happened. Q. You cannot explain how you got it there unless you stumbled and fell over? A. No, sir. Q. You didn't have anything to do with the running of the shears? A. No, sir. (Objected to.) The Court: Whatever explanation he wants to make he can do so. A. I don't know exactly how I happened to put my hand there. I didn't have anything to do with the shears, and had no business to have my hand up there. I would not have had it there if I had known I was going to put it there. I cannot explain how it happened to get there unless it was I stumbled when I was pulling out that tight piece of iron, and just the instant my hand struck that place the shears came down. It had not been staying there before. It happened just instantly, — just as my hand struck that place, the shears came down, and it cut off my fingers. That was the first stroke of the shears. They had not been there any length of time at all. Q. Not a second? A. Oh, it might have been a second. (Objected to.) Q. It had not been there a second? A. I don't know whether it had been there a second or not. Q. The instant it got there, the shears hit it? A. If it was a second, it would have been there an instant. Q. You didn't have time to jerk your hand away before it came down on your fingers? A. I don't know how it happened. May be the turning on of the lever. I didn't have time to jerk my hand away from the framework before my fingers were cut. I would not have put my hand on that place if I had known I was going to get it hurt. I stood pulling out iron, facing east. Davis was south of me. He was right back of me. His face was towards the shears. He started the thing up by pulling a lever. There is a belt. It has a lever with pulleys."

The operator's version is as follows: "I was there running the shearing machine when this boy was hurt, — that morning when he was pulling out the iron. Just before starting the machinery, I was oiling up the shafting. I was getting ready to start the machine. When I got through oiling, I came back, and told the boy to fill up the barrow with scraps, — the wheelbarrow. He put them in the barrow, like it is in that picture. There was a wheelbarrow there at that time. I had the wheelbarrow there, and the...