Halley v. Federal Truck Cc.

• Decision Date: 07 July 1925
• Docket Number: No. 18889.,18889.
• Parties: HALLEY v. FEDERAL TRUCK CO.
• Court: Missouri Court of Appeals

274 S.W. 507

HALLEY v. FEDERAL TRUCK CO.

No. 18889.

St. Louis Court of Appeals. Missouri.

July 7, 1925.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by Elmer Halley against the Federal Truck Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Fordyce, Holliday & White, of St. Louis, for appellant.

Mark D. Eagleton, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff while in the employ of defendant as a motor mechanic. From a verdict and judgment in favor of plaintiff in the sum of $5,500, defendant has appealed.

Plaintiff's amended petition alleged, among other things, that defendant was negligent in furnishing plaintiff with a wrist pin which was uneven and not of the proper size, and so highly tempered that it was not reasonably safe for the purpose for which it was intended, and in failing to provide reasonably safe tools and appliances with which to work, in that defendant should have furnished a punch made of soft material.

Defendant's answer was a general denial.

The evidence disclosed that plaintiff, 52 years of age, a motor mechanic of 24 years' experience, was injured August 21, 1922, while in the employ of defendant, for whom he had worked three years as a motor builder. His foreman was named Crosby. At the time of his injury he was fitting wrist pins, which were made of steel, and in the construction of a motor served to hold the connecting rod in the piston. Wrist pins varied in size, there being in the neighborhood of 100 different sizes in use in defendant's plant.

In fitting a wrist pin, a hole of the required size is cut in the piston with a reamer and the pin fitted accordingly. Plaintiff's work was performed on a workbench standing about 4 feet high. Four wrist pins which were to be put in this particular motor had all been procured by plaintiff from Crosby. Before attempting to use them, plaintiff measured them with a micrometer which was furnished him for that purpose, and found them all "averaging two to two and a half thousandths out of taper"—that is, larger at one end than at the other. At the same time, upon inspection, he found that they were too highly tempered and unsuitable for the purpose for which they were intended. The fact that the pins were "out of round" required that they be made to fit tighter.

Plaintiff reported to Crosby that the pins were out of taper and too hard, but Crosby informed him that he would have to use them, and that they had been used before. After this conversation, plaintiff returned to his bench and attempted to use the pins.

Half an hour before he was injured Crosby had furnished plaintiff a steel punch to use in tapping the wrist pins in and out of place. The punches were kept in a storeroom and varied in size to conform to the sizes of the wrist pins. In adjusting the pins the punch was placed against the pin and struck with a hammer.

The evidence was that the punches ordinarily used in defendant's plant were made of bronze, brass, wood, or some soft material to obviate the risk of chipping from hammering steel against steel. Not only was there danger to"the mechanic from the particles of steel flying, but the use of a steel punch against the wrist pin tended to bruise and ruin the pin. Before attempting to use the steel punch furnished him, plaintiff asked Crosby for one of softer material, but was told, "That is all we got. You will have to use what you got." Plaintiff was fitting the second of the pins, and, finding it to be too tight, started to tap it out with the steel punch. While so doing a piece of steel flew off of the edge of the pin, striking him in the left eye.

The following day the pain in his eye became so severe that plaintiff consulted Dr. Edward H. Higbee, under whose care he remained for six weeks. The eyeball was opened by Dr. Highbee at the point where the X-ray showed the particle of steel was imbedded, a powerful magnet was introduced through this hole, and the steel taken out through a counterpuncture. At the time of the trial plaintiff had nothing but light perception in his left eye, the retina being detached on one side. Plaintiff testified that when he became warm at work there was pain in the back of his left eye, and that his right eye would flood up so that his vision was impaired for a little bit. Dr. Higbee testified that the condition of the left eye Was permanent.

Defendant's demurrer to all the evidence was overruled, and all of its withdrawal instructions refused by the trial court. Plaintiff went to the jury with two instructions, No. 1 submitting the issues mentioned above, and No. 2 on the measure of damages. Appellant makes no complaint as to the sufficiency of the evidence to go to the jury, but assigns error in the giving of both of plaintiff's instructions.

Plaintiff's instruction No. 1 provided, in substance, that if the jury should find, and believe that defendant furnished plaintiff with a wrist pin which was so highly tempered that it was likely to break and strike and injure plaintiff while using it, that said wrist pin was uneven and tapered, and by reason thereof not of proper size for the work to be done, that defendant furnished. plaintiff a punch which was not reasonably safe for the purpose for which it was intended, that in furnishing said wrist pin and punch defendant failed to exercise ordinary care to furnish plaintiff reasonably safe tools and appliances, and that plaintiff, while striking the wrist pin with the punch, was injured as the direct and proximate result of defenda...