Harbacek v. Fulton Iron Works Co.
| Decision Date | 09 April 1921 |
| Parties | JOSEPH J. HARBACEK, Appellant, v. FULTON IRON WORKS COMPANY and JAMES B. DUNCAN |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Frank Landwehr Judge.
Affirmed.
W. H Douglass for appellant.
(1) Defendant's foreman was bound to know or at least should have anticipated tat particles of iron chipped by plaintiff from castings while in the performance of his duty were apt to strike him in the eyes, unless his eyes were protected and it was the duty of defendant to furnish plaintiff with goggles, the only known appliance, to protect his eyes. 3 Thompson on Negligence, sec. 3969; Curtwright v. Ruehlmann, 181 Mo.App. 557; Herdler v. Stove & Range Co., 136 Mo. 3; Smith v. Lidgerwood Mfg. Co., 67 N.Y.S. 533, 56 A.D. 528; Choate v. Rolling Mills, 27 Ont. App. 155; Thein v. Supply Co., 116 Mo.App. 1. (2) If it was negligence on the part of the defendant to fail to furnish plaintiff with goggles, then plaintiff did not assume the risk and injury as the servant never assumes a risk of injury caused by the negligence of the master. Williams v. Prior, 272 Mo. 613; Fisk v. Railroad, 263 Mo. 106; Patrum v. Railroad, 259 Mo. 109. (3) Plaintiff was not guilty of contributory negligence in continuing to do the work of chipping without goggles, as the danger was not so open and obvious that a reasonably prudent man would refuse to do the work. Jewell v. Bolt & Nut Co., 231 Mo. 176.
Leigh C. Turner, W. E. Moser and Kelley & Starke for respondents.
(1) The court properly sustained defendants' demurrers, because the only allegation of negligence contained in plaintiff's petition upon which recovery could be predicated was not proven by any evidence adduced upon plaintiff's behalf. (2) Under the undisputed and uncontradicted facts in this case, plaintiff assumed the risk of being injured by flying pieces of metal, which was a risk incident to the work in which he was engaged. Johnson v. Brick & Coal Co., 276 Mo. 42; Patrum v. Railroad, 259 Mo. 109; Chrismer v. Bell Tel. Co., 194 Mo. 189; Powers v. Loose-Wiles Co., 195 Mo.App. 430.
This is an action brought by plaintiff to recover damages for an injury to his eye, sustained while employed by defendant Fulton Iron Works Company. James B. Duncan, general foreman of the company is joined as a defendant.
At the close of the evidence in behalf of plaintiff, upon the request of both defendants the trial court gave as to each defendant an instruction in the nature of a demurrer to the evidence, the same being as follows: "At the close of plaintiff's evidence, the court instructs the jury that under the law and the evidence your verdict must be in favor of defendant." Plaintiff thereupon took an involuntary nonsuit as to both defendants, with leave to move to set the same aside. Thereafter, in due time, plaintiff filed his motion to set aside the nonsuit taken. Said motion being overruled, he took an appeal to this court.
The facts, as developed by the testimony offered by plaintiff are as follows: The defendant Fulton Iron Works Company conducts a large iron foundry and steel plant in St. Louis County, of which defendant Duncan is general foreman. Plaintiff testified on direct examination that he was 37 years old; that he worked for the defendant Iron Company from the latter part of March, 1918, until June 20, 1918, the day upon which he was injured; that he was employed as a floor machinist and that his work was to assemble and erect sugar mills, fitting parts and putting them together on the floor of the machine shop; that this floor was about 80 feet square and there were about seventy men in the same room, engaged in the same kind of work he was doing; that at the time he was injured he was fitting a dust guard over a roller which grinds the cane, said guard being formed like a half cylinder, and being about three feet long, eight inches wide and five-eighths of an inch thick. Plaintiff stated that when a guard was placed and it did not fit, it was his duty to chip it and make it fit, the chipping being done with a cold chisel and a hammer by taking the chisel in his left hand, placing it the way he wanted it, and striking the head of the chisel with the hammer held in his right hand; that some days he had to do more chipping than others, that there were days when he did none at all, but that on the average he chipped about three hours a day; that in this instance he was working with a man named Ed Kerns and had been instructed to do the particular chipping by Mr. Grier assistant to defendant Duncan; that he did not know how long he had chipped on the dust guard in question, but that after he had made a few licks, a piece from the casting he was chipping flew in his right eye; that after the piece of metal struck his eye his fellow-workman Kerns came up and opened his eye and the piece of metal fell out; that after the accident a doctor was called, who looked at the eye and sent him to Doctor Henderson who treated it, after which he went to the office of Dr. Briggs, who took an X-ray picture; that he suffered pain for about six months and that Dr. Henderson treated the eye from the day of the injury until about April, 1919, removing the eye in February, 1919. He further stated that when he was doing chipping, particles chipped off would fly in all directions and you could never tell where they were going to fly; that these pieces had struck him on different parts of the body and he thought that some of them had struck him in the face; that he wore nothing over his eyes while he was chipping; that he never saw any of the floor machinists who did the same work as he was doing wear goggles; that no one told him that there were any goggles there for him to wear while he was chipping; that there were men who worked out in the yard at the plant called "steady chippers," they doing the same work all the time, and that they wore goggles while at work. During the direct examination counsel for plaintiff offered to show by him that since the injury plaintiff had made an effort to get work as a machinist, but that he had been refused because of the fact that he had but one eye. Counsel for defendant objected and the objection was sustained.
On cross-examination, plaintiff testified that he had been working for the defendant Iron Company three or four months before the day he was hurt; that before he began work there he had worked for the Diesel Engine Company, before that for the Cabanne Motor Car Company, and before that for the Dorris Automobile Company, having been a machinist and having handled machinery at all those places; that he had been a machinist for five years before going to work for the defendant company and was experienced in that line of work, having so told defendant Duncan at the time he was employed; that when he went to work for the defendant company he knew that he would be required to do some chipping and during all the time that he was employed he did chipping to make castings fit on sugar machines; that Mr. Grier told him, when he first went to work for the defendant company, where the tool room was and had given him checks for the purpose of going to the tool room and obtaining tools; that when he would return the tools to the tool room he would receive these checks back; that in chipping he would measure off the part that was a little too large and that he wanted to chip off or cut off and then with a cold chisel in the left hand and a hammer in the right, would do the chipping; that he selected the place he wanted to chip off and where he wanted to place the blade of the chisel against; that he knew all the time he was employed by the company that, when he set a cold chisel against metal and hit the head of the chisel with the hammer, pieces of iron would fly off, and that he knew that fact before he began work for the company; that he also knew before he went to defendant's plant, and during all the time that he worked there, that he could not tell in which direction the pieces of iron were going to fly and that he had no control of the direction in which the small pieces would fly; that he knew that if one of these pieces struck him in the eye it would hurt his eye; that there was no foreman present directing him where to place the chisel; that before the accident he had chipped similar metal of the kind he was working on when injured; that he had chipped the day before the day of the accident and had no trouble; that the hammer and chisel he was using were all right; that he did not know whether they had goggles in the tool house or not, because he had never asked for any; that he saw other men who were "steady chippers" at defendant's plant wearing goggles all the time that he was employed there; that he knew what goggles were for and knew it when he was employed at defendant's plant; that he knew they were to keep things from getting in the eye, but never asked for goggles while he was there; that he never made any complaint to any one in authority for the defendant company at any time that he wanted or needed goggles; that he did not think it was necessary for him to use goggles when he was chipping.
On re-examination, plaintiff testified that when defendant Duncan hired him, he did not tell plaintiff that they had hammers, chisels, saws, files and all those kind of tools, but he knew that they had tools or they could not run the place; that defendant Duncan and Mr. Grier told him that they had anything that pertained to the job.
John Nieman testified on direct examination that he was then and had been employed by the defendant company for two and a half years; that he did chipping; that no goggles were furnished to the floor machinists that he knew of; that ...
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