Hancox v. Craddock-Terry Co.

• Decision Date: 08 March 1921
• Docket Number: No. 16260.,16260.
• Parties: HANCOX v. CRADDOCK-TERRY CO.
• Court: Missouri Court of Appeals

229 S.W. 271

HANCOX v. CRADDOCK-TERRY CO.

No. 16260.

St. Louis Court of Appeals. Missouri.

March 8, 1921.

Appeal from Louisiana Court of Common Pleas; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by Ora M. Hancox against the Craddock-Terry Company. From judgment for plaintiff, defendant appeals. Affirmed.

Eagleton & Habenicht, of St. Louis, and James E. Pew, of Louisiana, Mo., for appellant.

Matson & Cowherd, of Louisiana, Mo., for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while in the employ of the defendant corporation as its servant, and alleged to have been occasioned by the defendant's negligence. The trial below, before the court and a jury, resulted in a verdict and judgment in plaintiff's favor in the sum of $641, and defendant appeals.

On December 27, 1917, plaintiff, a young man about 22 years of age, was employed by the defendant in its shoe factory in the city of Louisiana, Mo. Plaintiff was working at an "assembling machine" which was used to fasten certain parts of shoes together with tacks. The machine was operated by a foot pedal, pressure upon which caused the machine, to "perform a revolution," whereby tacks which were within a tube and came out through a "tack chute" at the top of the machine, were driven into the shoe. The evidence is that the machine was 66 inches in height, and that connected therewith was a bench which stood 32 inches from the floor. The machine often became clogged, i. e., the tacks would stick in the tack chute. According to plaintiff's testimony this clogging of the machine occurred quite frequently, making it necessary for him to climb upon the bench to remove the tacks from the chute.

One Campbell was foreman of this department of defendant's business, having general supervision, management, and control of the work performed there, and whose duty it was to "look after the machinery" and to "hire and discharge hands" in that department. On the day of plaintiff's injury the machine became clogged with tack, and plaintiff got upon the bench in order to reach into the tack chute to take tacks therefrom. Campbell, seeing plaintiff upon the bench, with his hand in the chute, came to the machine to help get it in working order. When he reached the machine he noticed that a nut at the side thereof was loose, and he attempted to reach a wrench which was on the bench, apparently at the right side or the machine, and, as he said, about 24 or 30 inches from where he was standing. In leaning forward to reach the wrench he stepped upon the pedal of the machine, causing it to operate by reason whereof plaintiff's hand was caught in the machine and injured.

Campbell was called by plaintiff as a witness. After testifying as to the position which he held under the defendant and as to his duties as aforesaid, he said:

"I seen Mr. Hancox on top of the bench beside this assembling machine, and I went up to see what was the matter, and I asked him, and he said, `There was some tacks stuck in the machine;' and I noticed a bolt on the side of the machine or nut loose, and I went to reach over for a wrench to tighten it, and I overbalanced myself and slipped and my foot came down on the treadle while he had his hand in there."

And he further testified that it was his duty "in going around over the factory there to see the different men, attend to their complaints, or to get them started, if they were stuck, anything of that kind"; and that it was for this purpose that he went to the machine at which plaintiff was working.

One Yeager, a witness for plaintiff, testified that he worked on this same machine; that it frequently became clogged; and that when it did so Campbell "would come around and fix it up."

The only assignment of error is to the refusal of the court to peremptorily direct a verdict for the defendant. From the instructions given, it appears that the defense proceeded below upon the theory that the plaintiff's injury was due to an accident, unmixed with any negligence on the part of defendant's foreman. Such is not the theory presented on appeal, however. It appears to be tacitly conceded that the evidence was such as to warrant the jury in finding that the starting of the machine, under the circumstances, was due to negligence on the part of Campbell. But it is urged that defendant's demurrer to the evidence should have been sustained, for the reason that the evidence showed that at the time of plaintiff's injury Campbell was acting in a dual...