Green v. Baum
| Decision Date | 02 October 1939 |
| Docket Number | No. 19407.,19407. |
| Parties | GREEN v. BAUM et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Brown Harris, Judge.
"Not to be published in State Reports."
Action by Clyde Green against C. R. Baum and Stanley Baum, partners, doing business as Baum's Metal Specialties, to recover damages for personal injuries. From a judgment for plaintiff, defendants appeal.
Affirmed.
Arthur W. Edwards, John F. Cell, and Samuel M. Carmean, all of Kansas City, for appellants.
Martin C. O'Leary and R. C. Southall, both of Kansas City, for respondent.
SPERRY, Commissioner.
This damage suit is brought by Clyde Green, plaintiff below, against C. R. Baum and Stanley Baum, partners, doing business under the name of Baum's Metal Specialties, defendants. The parties will be referred to as plaintiff and defendants, in the order above mentioned. There was a jury verdict for plaintiff and, from the judgment that followed, defendants have appealed.
Defendants challenged the sufficiency of the evidence by demurrer offered at the close of plaintiff's case, and offered again at the close of all of the evidence in the case. Their first assignment of error is based upon the action of the trial court in overruling each of said demurrers.
As to the demurrer offered at the close of plaintiff's case, it is sufficient to say that defendants themselves waived same when, after the demurrer was overruled, they offered evidence and asked instructions in its behalf. Davison v. Hines, Mo.Sup., 246 S.W. 295, loc. cit. 303; Paetz v. London Guarantee & Accident Co., Limited of London, England, 228 Mo. App. 564, 71 S.W.2d 826, loc. cit. 828.
The testimony was to the effect that plaintiff is an unskilled laborer who, prior to his employment by defendants, had had no experience in operating lathes, polishing and buffing machines, or other machinery commonly operated in connection with a metal products shop; that defendants C. R. Baum and Stanley Baum, his son, own and operate a metal products shop equipped with various grinding, polishing and cutting machines used therein; that defendants advertised for an odd job man, a common laborer, at a wage of about a dollar per day; that plaintiff responded in person and was employed to perform general odd jobs about the place, such as janitor work, oiling machinery when not in operation, running errands, etc.
Plaintiff testified that on March 7, 1935, after he had been so employed for a period of about two weeks, he was instructed by C. R. Baum to operate a lathe in finishing some metal castings which he handed to him; that plaintiff protested that he knew nothing about the operation of such a piece of machinery and that Mr. Baum took him to the machine and told him that a baby could operate it, that he must either do the work required or "get out"; that Mr. Baum gave him no instructions regarding its operation, nor did he warn him of the dangers incident to the operation of a lathe; that, pursuant to said orders, he proceeded to operate the machine and, in so doing, injured his finger and hand for which injury he seeks damages.
The evidence, both that on behalf of plaintiff as well as that for defendants, all tends to prove that the operation of a lathe, such as the one mentioned in evidence, is attended with great danger to one unskilled in its operation and that defendants had full knowledge thereof.
The evidence on behalf of defendants was to the effect that neither of them ever instructed plaintiff in the operation of the lathe, warned him of the danger incident to its operation, or required him to use or operate same; that C. R. Baum instructed plaintiff to grind some castings on a grinding machine, or buffer, a comparatively simple machine, and that the first information that either of them had that plaintiff had used the lathe was when they learned of his injury and saw the pinched off end of his finger in an old glove in the lathe. They also offered in evidence an instrument identified in the record as defendants' Exhibit 1, which defendants say is a release. The instrument follows:
Defendants urge the demurrer on two grounds; that plaintiff's version of the facts leading up to the injury as well as his explanation of the signing of the release, "is self-evidently perjured and opposed to the physics of the case;" and because of the making of a release.
They urge that the conduct of C. R. Baum, as sworn to by plaintiff, was not reasonable, but that Baum's contention that he instructed plaintiff to grind the castings on the buffer, a machine that is simple of operation and not dangerous, is in harmony with the "physical facts" of the case....
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