Gordon v. Packing Co.

• Decision Date: 24 June 1931
• Docket Number: No. 29600.,29600.
• Citation: 40 S.W.2d 693
• Court: Missouri Supreme Court
• Parties: SAM GORDON v. MUEHLING PACKING COMPANY, Appellant.

40 S.W.2d 693

SAM GORDON v. MUEHLING PACKING COMPANY, Appellant.

No. 29600.

Supreme Court of Missouri.

Division One, June 24, 1931.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

AFFIRMED (upon condition).

Jones, Hocker, Sullivan & Angert for appellant.

(1) When the instrumentality or method which, at the time of the accident was in its normal condition, evidence going to show that such an instrumentality was or was not commonly used under similar circumstances by persons in the same line of business as the defendant, is always competent for the purpose of proving that he was or was not in the exercise of due care in retaining that instrumentality as a part of his plant. 3 Labatt's Master & Servant (2 Ed.) 25-28; Chrisman v. Bell Tel. Co., 194 Mo. 189; Brands v. Car Co., 213 Mo. 698; Saversinck v. Schwarchild & S. Co., 141 Mo. App. 509; Beckman v. Brewing Assn., 98 Mo. App. 555; Harrington v. Railroad Co., 104 Mo. App. 663; Robbins v. Mining Co., 105 Mo. App. 78; Robinson v. Railroad Co., 133 Mo. App. 101; Shinners v. Mullins, 136 Mo. App. 298. (2) Instruction "C" should have been given. It is but hornbook law that before the master can be held liable in damages for injuries to his servant, caused by damages or defects in the place where the servant is required to work, the master must have known such conditions before the injury, or by the exercise of reasonable care and diligence could have known thereof in time to have rendered the place reasonably safe. Manche v. Basket & Box Co., 262 S.W. 1023; 26 Cyc. 1142. (3) The judgment is excessive. (4) The petition does not state a cause of action, and the evidence fails to show any negligence by the defendant. The petition is founded, and the case was tried, on the rule of res ipsa loquitur, and the petition does not state, nor does the evidence show, any facts causing the accident which speak culpable negligence of the defendant, and in order to so find it is necessary to build one inference or presumption upon another. Hamilton v. Railroad, 123 Mo. App. 619; Removich v. Construction Co., 264 Mo. 43; McGrath v. Transit Co., 197 Mo. 97; Sabol v. Cooperage Co., 313 Mo. 540; Glasscock v. Dry Goods Co., 106 Mo. App. 657; Copeland v. Railroad Co., 175 Mo. 650; Deckerd v. Railroad, 111 Mo. App. 123; Bowen v. Railroad, 95 Mo. 268; Fugler v. Bothe, 117 Mo. 491; 26 Cyc. 1411; Cothron v. Packing Co., 98 Mo. App. 343; Carnegie Steel Co. v. Byers, 82 C.C.A. 115; Fitzgerald v. Railroad, 6 L.R.A. (N.S.) 337, and Walkowski v. Penokee Mines, 41 L.R.A. 33, and note; Byers v. Steel Co., 16 L.R.A. (N.S.) 214, and note; Klebe v. Distilling Co., 207 Mo. 480.

Banister, Leonard, Sibley & McRoberts and Frank P. Aschemeyer for respondent.

(1) The court did not err in refusing defendant's Instruction C. because: (a) The instruction erroneously authorizes the jury to return a verdict for the defendant if the jury found from the evidence that the machine in question had been purchased from a reliable dealer or manufacturer. A master must exercise ordinary care to furnish his servant a reasonably safe place in which to work, and reasonably safe tools and appliances with which to work. Carley v. Telephone Co., 231 Mo. 417; Hunter v. Candy Co., 307 Mo. 656, 271 S.W. 800; Warner v. Glass Co., 319 Mo. 1196, 8 S.W. (2d) 846; Schmeer v. Cold Storage Co., 12 S.W. (2d) 433. This duty of the master is a continuing one and cannot be delegated. Combs v. Const. Co., 205 Mo. 367; Prapuolenis v. Const. Co., 279 Mo. 358, 213 S.W. 792; Dixon v. Const. Co., 318 Mo. 50, 298 S.W. 827; Snyder v. Car & Foundry Co., 14 S.W. (2d) 603. (b) There is absolutely no evidence in the record to show who the manufacturer of the machine was and whether or not such dealer or manufacturer was reliable. An instruction which does not correctly state the facts as disclosed by the testimony is properly refused. Johnson v. Car & Foundry Co., 259 S.W. 442. An instruction which is not supported by the evidence is properly refused. Wagner v. Railroad Co., 209 Mo. App. 121, 232 S.W. 771; Gittings v. Jeffards, 292 Mo. 678, 239 S.W. 84. (c) The instruction does not require the jury to find that defendant had exercised ordinary care in inspecting and maintaining the machine in question. A master is bound to make reasonable inspection and necessary tests of the place and appliances which he furnishes to his servant. Klebe v. Distilling Co., 207 Mo. 480; Schener v. Rubber Co., 227 Mo. 347; O'Neil v. Seed & Plant Co., 58 Mo. App. 628; Huth v. Dohle, 76 Mo. App. 671; Mulloy v. Painting Co., 214 S.W. 405; Cody v. Lusk, 187 Mo. App. 327. (d) Defendant's evidence shows that the machine was in operation for six months prior to plaintiff's accident. The court could then say, as a matter of law, that the machine had been in use a sufficient length of time for defendant to have discovered defects, and there was no question for the jury in this respect. (e) Error cannot be predicated upon the refusal of an instruction offered unless it is correct in all respects. Voelker v. Const. Co., 153 Mo. App. 1; Barth v. Ry. Co., 142 Mo. 556; Linton v. Lightning Rod Co., 285 S.W. 183; Kilcogne v. Metz, 258 S.W. 4; Hildman v. Mfg. Co., 249 S.W. 99. (f) There is no duty on the court to separate the good from the bad parts of an instruction, nor to correct or revise an instruction offered. Fisher v. Transit Co., 198 Mo. 592; Chouteau v. Trust Co., 310 Mo. 684; Trustees v. Hoffman, 95 Mo. App. 497. (2) The petition states a cause of action and is in a form which has been approved by this court. Ash v. Printing Co., 199 S.W. 994; State ex rel. v. Reynolds, 287 Mo. 697. Defendant's instructions in the nature of demurrers to the evidence were properly overruled, because: The evidence made out a case of res ipsa loquitur or presumptive negligence, and plaintiff was not required to plead or prove specific negligence. Blanton v. Dodd, 109 Mo. 64; Ash v. Printing Co., 199 S.W. 994; Eckhardt v. Electric Mfg. Co., 235 S.W. 117; Nelson v. C. Heinz Stove Co., 8 S.W. (2d) 918; Klebe v. Distilling Co., 207 Mo. 480; Kitchen v. Mfg. Co., 20 S.W. (2d) 676; Schuler v. Can Co., 18 S.W. (2d) 42; Meade v. Water & Steam Supply Co., 300 S.W. 515; Uhl v. Elec. Co., 295 S.W. 127; Miller v. Fire Clay Products Co., 282 S.W. 141; Lowe v. Laundry, Cleaning & Dyeing Co., 274 S.W. 857; Bond v. Ry. Co., 288 S.W. 782; Hauck v. Car & Foundry Co., 14 S.W. (2d) 497.

STURGIS, C.

This case is here on defendant's appeal from a jury verdict and court judgment in plaintiff's favor in a damage suit for personal injuries. Plaintiff's injuries arose from his hand being caught and mashed in a sausage-grinding machine, which he was operating in defendant's meat packing plant in a suburb of St. Louis. There is no question as to the fact or manner of plaintiff's injuries. While the action is based on defendant's negligence, the petition is framed and trial was had on the doctrine of res ipsa loquitur rather than on specific negligence.

The petition alleges, the evidence supports, and plaintiff's principal instruction is based on these general allegations and facts:

The defendant maintained and operated a meat packing plant and therein and as part thereof maintained and operated a sausage grinding machine, which plaintiff was employed in operating. This sausage-grinding machine was operated by electrical power in grinding meat into sausage and other products, and consisted in the main of a hopper into which the meat was placed and from thence passed into a "worm" or "snake" shaped like a screw and revolving horizontally at the bottom of the hopper, and which carried and forced the meat through a "plate" and revolving knives which cut and ground it into sausage. The electrical power which turned this worm or screw and the other machinery was turned on or off by means of two buttons placed on the front of the machine. The power was turned on and the machine started to grinding by pressing the black button, and was stopped by pressing the red button. When the machine was in good order and properly operating, the worm, when stopped and standing still, would not start to revolve except on pressing the black button. When it was necessary, as it was at intervals, to clean the machine, especially when changing the grinding of one kind of meat to another kind, the power was turned off by pushing the red button, the machine stopped, and this worm, the knives, etc., were removed and washed. After cleaning the worm and other parts they were replaced in the machine to get ready for further meat-grinding. In replacing the worm in the machine it was necessary for the operator to reach his hand and arm into the hopper and take hold of the worm and fit the square end of the same into a square socket. This brought the operator's hand in contact with the worm or screw, and should the power then be turned on and the worm started to revolving there was great danger of the hand being caught and crushed.

Plaintiff further alleged and proved that on June 24, 1926, he was in defendant's employ, operating the sausage machine in question, and had finished one job of meat-grinding, had stopped the machine and had removed and cleaned the worm and other parts, and was putting the same back in place; that while he was adjusting the worm and fitting the end in the square socket with his hand in the hopper and hold of the worm for that purpose, such machinery being at rest, the same suddenly, unexpectedly and in an extremely unusual manner, and without plaintiff's prior knowledge and without the black button being pressed, started in motion and commenced to operate, with the result that the revolving worm caught and crushed plaintiff's hand and wrist; that plaintiff does not know the cause or causes of the sudden and unusual starting and operation of the machinery, but that the same was due to the negligence and carelessness of the defendant and was not caused by any negligence of the...