Goransson v. Riter-Conley Mfg. Co.

• Decision Date: 15 February 1905
• Citation: 85 S.W. 338,186 Mo. 300
• Parties: GORANSSON v. RITER-CONLEY MFG. CO.
• Court: Missouri Supreme Court

85 S.W. 338

186 Mo. 300

GORANSSON v. RITER-CONLEY MFG. CO.

Supreme Court of Missouri, Division No. 1.

February 15, 1905.

SERVANT'S INJURIES—MASTER'S LIABILITY— SAFE APPLIANCES—PROXIMATE CAUSE—EVIDENCE.

1. Where an injury to a servant may have resulted from more than one cause, for one of which the master is not liable, in an action for the injury it is incumbent on plaintiff to show that the injury arose from the cause for which the master is liable.

2. Where a servant driving a steel pin, tempered in the master's shop, is injured owing to the pin being overtempered, the master is liable.

3. In an action for injuries to a servant owing to a sliver flying from a steel pin he was driving, it was shown that the pin was tempered in the master's shop, the tempering being done by heating and dipping the pin in oil, and that the sliver might have flown because of over-tempering, because plaintiff struck it a slanting blow, or because of a latent flaw. Another servant testified that before the accident slivers flew from some of the pins, and that he told the foreman the pins were bad. Later it appeared that a number of pins were made by the same tool maker from the same character of steel, which were properly tempered, and that the servant who reported to the foreman tried to draw the temper from some of the pins by heating and dipping them in oil, and threw the others away, and it did not appear whether the pin the plaintiff was using was one that the servant had attempted to draw the temper from. Held, that the testimony of the servant who attempted to draw the temper was properly stricken, since it would have left the jury to supply, by conjecture, a connection of condition between the pins that the witness used before the accident and the pin that plaintiff was using; and involved a speculation as to whether the pin that was made by the tool maker had been overheated, and too highly tempered, by the act of the witness in attempting to reduce its temper, which act the master had no notice of, and had not authorized.

4. Where, in an action for injuries to a servant owing to a sliver flying from a steel pin he was driving, it was shown that the sliver might have flown because of overtempering of the pin by the master, from a latent flaw in the pin, or from the character of the blow struck, but which cause was responsible for the accident did not appear, a demurrer to the evidence was properly sustained.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by Claes A. Goransson against the Riter-Conley Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Seddon & Holland, for appellant. Myron Westover and F. C. Sharp, for respondent.

MARSHALL, J.

This is an action for $10,000 damages for personal injuries sustained by plaintiff on the 10th of July, 1901, while in the employ of the defendant. The trial court sustained a demurrer to the evidence at the close of the plaintiff's case, the plaintiff took a nonsuit, with leave, and after an unsuccessful motion to set the same aside appealed to this court.

The petition alleges the relation of master and servant, and that the defendant was engaged in the erection of a gas reservoir at the corner of Chouteau and Newstead avenues, in St. Louis, and that the defendant employed the plaintiff to rivet columns therein. The negligence alleged is "that the tools and appliances furnished to him by defendant for his use in his said employment were defective, as defendant well knew, or might have known by the exercise of reasonable care and caution"; that "while he was using said tools and appliances to drive a drifting pin, in performing said duties a piece of said pin, by reason of the defective condition thereof, flew, and struck the plaintiff in his left eye, causing the total destruction of the sight thereof." The answer is a general denial, with a plea of contributory negligence and a plea of assumption of risk.

The case made by the plaintiff is this: The plaintiff was 44 years of age. He was a structural iron worker by trade, and had been in that business over 10 years. Two days before the accident he was employed by defendant's foreman, and set to work riveting the framework of the reservoir. The foreman showed him where to work, and told him where he would find the tools. He was working on a platform about 35 feet above the ground, with the riveting gang, whose duties were to join steel uprights of the framework together by the insertion and fastening of rivets. One of the men would heat the rivet, another would insert it, while heated, in the holes of the pieces to be connected, and hold it in place with his hammer, while another would fasten it. At times the holes in the iron-work would not correspond, and the rivet could not be inserted. In such cases it was necessary to straighten out the holes, which was done by inserting and driving through a "drifting pin" by striking it with a six-pound hammer or maul. The drifting pins were made of steel, and were thirteen-sixteenths of an inch in diameter and from five to seven inches long, barrel shaped, the largest part being one-sixteenth of an inch larger than the rivet, and the same size as the hole through which they were to be driven. The plaintiff was driving a drifting pin with a maul. The pin was new, and had not been used before. It was a turned or lathe-made pin, and not a hand-made pin. When the plaintiff hit the pin, a small sliver, about the size of a grain of wheat, chipped off, and hit him in the eye. The other men caught the plaintiff to keep him from falling off the scaffold, and one of the men examined the pin, and found that two slivers about the size of grains of wheat had chipped off. The man then threw the pin away. There was therefore no opportunity afforded of afterwards testing it. The defendant used a great many such drifting pins in the doing of this work. The pins were made from bars of steel purchased by defendant from the Firth-Sterling Steel Company, of Pittsburg, Pa., a first-class concern. They were made by that company out of what is called "Silver Star" steel, which is the best grade of steel that is manufactured for making drifting pins. They were 3½ temper, which means 75/100 of 1 per cent. carbon, which is the mildest temper made for drifting pins. They are made softer in temper so that they will not chip, but the end that is struck with a hammer will crush or batter down. They were furnished to the defendant in round bars, 10 or 12 feet long. When defendant received such bars they were sent into the tool shop, where they were cut into pieces six to eight inches long, by an expert tool manufacturer. The pieces were then turned with a lathe into drifting pins of the size and shape described. The pins were then tempered by being heated, and, while hot, dipped in oil, which made them tougher, but not as hard as if dipped in water. The more highly tempered they were, the more brittle they were. Such pins may be turned with a lathe or forged by hand. Either method is proper; but for work like this, where the rivets must fit the holes so tight as to prevent the escape of gas, turning with a lathe is considered the best, for it makes a smoother hole. If the steel is very highly tempered, it will be easily detected, because the lathe will not work it. After the pins are made, they are placed in a box, where the workmen go and help themselves. It also appeared that the temper of the pins could be ascertained by trying them with a file or hammer. Some time in June preceding the accident one of the man, who was a witness for the plaintiff, used several pins, and they chipped, and he said to the defendant's foreman: "These pins are awful bad. They are dangerous to...