Grott v. Johnson, Stephens & Shinkle Shoe Co.

• Decision Date: 18 February 1928
• Docket Number: 26708
• Citation: 2 S.W.2d 785
• Parties: GROTT v. JOHNSON, STEPHENS & SHINKLE SHOE CO
• Court: Missouri Supreme Court

2 S.W.2d 785

GROTT v. JOHNSON, STEPHENS & SHINKLE SHOE CO

No. 26708

Supreme Court of Missouri, Second Division

February 18, 1928

Kelley, Starke & Hassett and Conway Elder, all of St. Louis for appellant.

Mark D Eagleton, John F. Clancy, and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

OPINION

HIGBEE, C.

The plaintiff sued the defendant in the circuit court of the city of St. Louis for damages for personal injuries suffered by her while employed in defendant's shoe factory. From a verdict and judgment in her behalf for the sum of $ 15,000, the defendant appealed.

There is little, if any, difference between the statements filed by the appellant and respondent. We quote the respondent's summary of the pleadings and evidence:

'Plaintiff's amended petition, upon which the case was tried, alleges that on the 21st day of September, 1923, she was employed by defendant in its factory, to work at and about a power driven machine, and that while so engaged she was severely and permanently injured when her hair became caught in the machinery; that a large part of her scalp was torn from her head and part of her head denuded of flesh; that she sustained a severe shock and hemorrhage, and her nervous system was severely shocked; she sustained a concussion and bruising of her brain and her neck was wrenched and sprained; her head was scarred and disfigured; she lost part of her hair and has suffered a tumor upon her head; that she suffered and will permanently suffer from headaches, dizziness, nervousness, weakness, insomnia, and nervous tremors and great pain of body and anguish of mind; that she was required to undergo a serious and painful flesh-grafting operation; that plaintiff's ability to earn a livelihood has been greatly impaired and diminished, and she has lost and will lose her earnings at the rate of $ 40 per week; that she has suffered great humiliation and embarrassment by reason of the disfigurement of her head; and, further, that she has become obligated for medical bills in the sum of $ 500 in the treatment of her injuries.

'Plaintiff's amended petition sets out five specifications of negligence, but the case was submitted to the jury upon the first specification only, as follows:

' '(1) Defendant negligently caused, suffered, and permitted said machine and its gears, shaft, and parts in said building to be unguarded and not safely and securely guarded, in violation of the statute in such case made and provided, although said machine and its gears, shaft, and parts were so placed as to be dangerous to persons, particularly plaintiff, employed therein or thereabout, while engaged in their ordinary duties, and it was possible to safely and securely guard the same.'

'The defendant's amended answer to said amended petition was a general denial, a plea of contributory negligence, asserting that plaintiff was guilty of negligence in permitting her hair to come in close proximity to and in contact with the shaft, and the following plea of assumption of risk:

' 'Further answering, defendant states that whatever injuries, if any, were sustained by plaintiff on the occasion mentioned in said petition, by and on account of the matters and things set forth in said petition, were caused by the usual and ordinary risks and dangers necessarily incident to the work and employment in which plaintiff was engaged, which were obvious and known to plaintiff, or by the exercise of ordinary care could have been known to her, and which she assumed by accepting and continuing in the employment and work in which she was engaged at the time she is alleged to have been injured, for which alleged injuries defendant is not liable, and on account of which alleged injuries the plaintiff is not entitled to recover.'

'The reply was a general denial. All the evidence was produced by plaintiff; the defendant resting on its demurrer at the close of her case.

'The plaintiff's evidence shows that, on the occasion in question, she was employed in defendant's factory as operator of a machine used for stitching the lining on the inside of ladies' shoes. There was a row of 18 similar machines, extending east and west, near the north wall of the factory. The machine plaintiff was using was the sixth machine from the east end of the line. It was somewhat similar to an ordinary sewing machine. It rested upon a table in dimensions 42 inches from north to south and about 31 inches from east to west. The top of the table was about 311/2 inches from the floor.

'The tables of the respective machines stood side to side, without any space between them, and the table on each end of the row extended to the wall, so that the tables formed a continuous and unbroken line from wall to wall of the room. Underneath this row of tables there was a 13/16-inch line shaft extending east and west, situated about 18 inches from the floor, and about 2 feet back from the front edge of the tables. This shaft operated all the machines in the row. There was no means by which the power could be turned off of any one machine without turning the power off on all of them. The shaft revolved at about 400 revolutions per minute.

'In the work plaintiff was doing it was necessary to use a hammer quite frequently-plaintiff said 2 or 3 times an hour-to hammer down the binding of the leather in order to sew in the lining. For this work a hammer was ordinarily kept on the machine table. The hammer was the property of defendant and had been furnished for use in this work. On the morning of plaintiff's injury the hammer was missing and plaintiff had been using the handle of a screw driver instead. Plaintiff spied the hammer under the west side of her machine table while she was bringing a box of shoes down the aisle to her machine, a short time before the accident. The girl who worked on the machine immediately to the east of plaintiff asked plaintiff for the hammer. It was lying on the floor, its length extending north and south, with the handle underneath the moving shaft, and the head north of the shaft. Plaintiff pushed her chair back, stooped down, and reached under the table to get the hammer. She did not kneel; her feet were on the floor, and she was stooping forward. She said her knees were bent toward the floor and she was leaning on her left hand and reaching with her right. While in this position her left foot slipped and caused her to fall forward, toward the north, and her hair was caught by the shaft. She jerked away. About three-fourths of her scalp was torn from her head and left hanging on the bar.

'Plaintiff testified that the floor around her machine was very slick from the moving of boxes and other objects over it. It was shown without controversy that the shaft in question could have been guarded without difficulty and that a guard was in fact provided by defendant after plaintiff's injury.'

1.Appellant's first contention is that the court erred in admitting plaintiff's evidence that since the accident her menstruation has been irregular and painful, for the reason that such injury was not pleaded.

The plaintiff testified her menstruals were not regular as they should be. Defendant moved to strike this out because it was not pleaded and for the reason that menstrual disturbances do not necessarily follow a nervous condition as alleged in the petition. This motion was overruled, but later in the course of the trial the court, on defendant's motion, struck out all the evidence as to irregular or painful menstruation and instructed the jury to disregard it.

The evidence did not show that plaintiff's menstrual disturbance was the necessary result of her injuries and under the ruling in Hall v. Coal & Coke Co., 260 Mo. 351, 370, 168 S.W. 927, Ann. Cas. 1916C, 375, the evidence of such disturbance was a matter of special damages that should have been pleaded. The instruction of the court to the jury to disregard the evidence erroneously admitted is ordinarily sufficient. 'To hold otherwise would be to establish the rule of practice that when a court made a mistake and admitted incompetent testimony, and afterwards discovered that it had done so, it could not effectually correct the error by instructions to the jury, but that in order to remove the sting of the error it would have to discharge the jury and award a new trial before a new venire. Such a rule could not reasonably be expected to be announced by any court. When a trial court becomes satisfied that it has erred in the admission of testimony, all that it can do is to instruct the jury to disregard it, and the presumption is that the jury did disregard it.' Harrison v. K. C. Electric Light Co., 195 Mo. 606, 635, 93 S.W. 951, 960 (7 L. R. A. [N. S.] 293). 'That rule is a good working one to attain a right result, and is always held to attain such result except under exceptional circumstances, not present here, calling for a reversal as the only cure.' Stauffer v. Railroad, 243 Mo. 305, 321, 147 S.W. 1032, 1036. See, also, Hamm v. Railroad, 211 Mo.App. 460, 471, 245 S.W. 1109, and Salmons v. Railroad, 271 Mo. 395, 402, 197 S.W. 35.

There is no merit in the contention.

2.The second assignment is that the court erred in admitting plaintiff's testimony that the floor around the machine where she worked was slick and shiny, because it was not pleaded as an act of negligence. Plaintiff, when asked as to the condition of the floor where she was working in front of her machine, replied that it was as slick as glass. Defendant's counsel moved 'that be stricken out as a conclusion on the part of the witness and not a statement of conditions there.' The court sustained the motion and directed the jury to disregard it.

'Mr Eagleton: I don't know how to get it to the jury, if the court please. I...