Hahn v. Flat River Ice & Cold Storage Co.

• Decision Date: 12 December 1955
• Docket Number: No. 1,No. 44725,44725,1
• Citation: 285 S.W.2d 539
• Court: Missouri Supreme Court
• Parties: John L. HAHN, (Plaintiff) Respondent, v. FLAT RIVER ICE & COLD STORAGE COMPANY, a Corporation, (Defendant) Appellant

Page 539

285 S.W.2d 539

John L. HAHN, (Plaintiff) Respondent, v. FLAT RIVER ICE & COLD STORAGE COMPANY, a Corporation,

(Defendant) Appellant.

No. 44725.

Supreme Court of Missouri, Division No. 1.

Dec. 12, 1955.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 9, 1956.

Raymond S. Roberts, Roberts & Roberts, Farmington and John F. Evans, Evans & Dixon, St. Louis, for appellant.

J. B. Schnapp, Fredericktown, and Edward V. Sweeney, Monett, for respondent.

HYDE, Judge.

Action for damages for personal injuries. Verdict and judgment for plaintiff for $25,000, and defendant has appealed. The principal questions are whether plaintiff's evidence was sufficient to show that defendant was negligent and whether plaintiff was negligent as a matter of law.

Plaintiff lost his right hand in an ice crushing machine. He said his hand was caught when he reached into a chute in the bottom of the machine to unclog ice that would not fall out. The case was submitted on three charges of negligence, as follows:

'(b) In failing to provide any or suitable tools or equipment for use by operators of said ice crusher in removing collected ice from the chute of said machine so as to enable them to remove said ice without placing any part of their body in a position dangerously close to the crushing and grinding mechanism.

'(d) In failing to warn the plaintiff and other persons using said machine of the location of the grinding mechanism of said machine, and of the danger of the users coming into contact therewith when reaching into the chute of the machine to remove ice collected therein.

'(g) In instructing and directing plaintiff to insert his hand into the machine to remove ice therefrom when they knew or in the exercise of ordinary care could have known that plaintiff could not do so with reasonable safety.'

Plaintiff purchased ice from defendant and sold it to customers on a route he had served since 1945. He was injured in June 1951 and was 71 years old at the time of the trial in September 1954. He sold both block ice and crushed ice on his route and was in defendant's plant several times a day in the summer. In 1945 defendant had an old ice crushing machine which plaintiff frequently operated when defendant's manager and engineers were present and no one objected to his running this machine. In July 1949, defendant installed a new ice crushing machine and one of defendant's engineers showed him how to start this machine and operate it. Plaintiff did operate it almost every day except on Sunday during the summers for about two years before he was injured. He usually delivered only block ice in the mornings and would crush ice in the evening. Plaintiff offered in evidence a photograph of this machine, from which it appears there was a hopper at the top into which blocks of ice were lifted by means of an elevator on the side of the machine. Also at the top, just below the hopper, there was a revolving drum with spikes or claws which pulled the ice in from the hopper and broke it up. These moving parts (the grinder) were completely enclosed by metal sides. The machine could be adjusted to grind coarse, medium or fine. Below the enclosed moving parts and above the receiving bin, into which crushed ice dropped, there was an open space across the entire width of the machine. We refer to the side of the machine where this opening was as the front of the machine (this open space was enclosed on the other three sides) and we note there was an iron ledge or beam above this open space which supported the enclosed moving parts and hopper. Also below the open space and below the receiving bin there were two doors in the front of the machine which could be adjusted to make a wider or narrower opening for the ice to fall out. (A plaintiff's witness said the usual opening was 10 or 12 inches.) There were chutes, running down from the receiving bin to these doors, which plaintiff said were 12 or 14 inches long. When the machine was running, the crushed ice would fall from the enclosed grinder through the open space, below these enclosed moving parts, into the receiving bin and then slide through the chutes and out of the doors. On the front of the machine, below the doors of the chutes, there were curved metal bars on to which ice sacks (about 3 1/2 feet long) could be hooked to receive the ice from the chutes. The machine stood on legs about the length of the ice bags. The machine was operated by electricity and the switch controlling it was on the wall six or eight feet from the machine.

Plaintiff said the ice would clog in the chutes and it was necessary to reach in the doors with his hand to drag out the ice. He said defendant's manager and engineers did this in his presence when they operated the machine; that he did so many times in their presence during the two years before he was injured; and that he had seen other ice customers do so in their presence. He said the engineer who showed him how to operate this machine when it was first installed demonstrated to him how to drag out ice by reaching his hand 'in that chute where the ice comes down from the crusher.' He said: 'It was the only way you could get it out of there. It clogged up in there and backed up into the machine, back into the grinder. * * * In warmer weather it would clog up a whole lot worse because it gets clammy. * * * When it got too full, it would fall out on the floor.' (Apparently, from the open space above the bin.) Plaintiff said there were never any tools or utensils furnished for use in removing the clogged ice; that there were no notices posted warning customers against the practice of reaching into the chute to drag out ice; and that neither defendant's manager nor engineers ever warned him or other ice customers that the practice was dangerous. However, the engineer when showing him how to operate the machine told plaintiff 'to be awful careful about the top, it was dangerous.' Plaintiff said sometimes the machine would not catch the ice blocks in the hopper and 'you would have to get up there with an icepick or something to chop it up and get the crusher to take hold of it.' He said: 'I didn't know about the bottom end of it. I was afraid of the top of it all the time. * * * I had looked in the top of it, had to lots of times to break up the ice.'

He further testified:

'Q. You could see down in the machine? A. Could see the top of it where it was running there, yes.

'Q. And that would show this drum with these jiggers or spikes on them, is that right? A. Spikes, yes.

'Q. How long were they, Mr. Hahn? A. I think they was between three inches, between two-and-a-half to three inches, something like that.

'Q. You mean that stuck out from the drum? A. That was kind of a hook-shape, you know.

'Q. That clawed the ice? A. That is right.

'Q. They were fastened to a center drum, were they, that revolved? A. That is right.

'Q. You have seen that revolving many times? A. Yes, sir.

'Q. Now, you said whoever it was that showed you how to operate it had warned you about the upper part of the machine where the grinder was? A. Yes, sir.

'Q. is that right? A. He did. * * *

'Q. Now, down in this bin here where the ice dropped down in there where you say it clogged up, there wasn't any moving parts down there, Mr. Hahn? A. No.

'Q. The only moving part that you know of in that machine was this moving drum around there, is that right? A. That is right.'

Defendant offered no evidence except the measurements of the machine and photographs of the machine which were identified by plaintiff on cross-examination and introduced in connection therewith. Plaintiff had two witnesses who were ice customers of defendant and who corroborated his testimony as to the methods used in getting crushed ice.

On the day plaintiff was injured he went to the office and purchased a ticket from the manager for 600 lbs. of ice. Plaintiff gave the ticket to the engineer in the room where the machine was and he gave him the ice but told plaintiff he would have to crush it himself. (The engineer 'was working on the pump or something.') Plaintiff had ground two sacks of ice and was working on the third and was standing 'straight up' in front of the ice bag. The ice was collecting in the chute and he reached in the chute to rake out the ice with his hand. He was asked if he reached in as far as his elbow and answered: 'I don't know whether it could have been or not.' (Plaintiff testified that the measurement from the break of his elbow to the tips of his fingers was 18 1/2 inches. Defendant's measurement from the corner of the chute to the nearest moving parts of the machine was 17 inches and this seems more favorable to plaintiff than his own estimate that the chute alone was 12 or 14 inches long.) Plaintiff said while he was raking the ice out of the...