Heckfuss v. American Packing Co.

• Decision Date: 17 June 1920
• Docket Number: No. 16081.,16081.
• Citation: 224 S.W. 99
• Parties: HECKFUSS v. AMERICAN PACKING CO.
• Court: Missouri Court of Appeals

224 S.W. 99

HECKFUSS v. AMERICAN PACKING CO.

No. 16081.

St. Louis Court of Appeals. Missouri.

June 17, 1920.

On Motion for Rehearing, July 24, 1920.

Appeal from St. Louis Circuit Court; Samuel Rosenfeld, Judge.

"Not to be officially published."

Action by Jacob Heckfuss against the American Packing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Anderson, Gilbert & Hayden, of St. Louis, for appellant.

Fred C. Steltemeier, Charles E. Morrow, and Christian F. Schneider, all of St. Louis, for respondent.

NIPPER, C.

This is an action for damages for personal injuries. Plaintiff recovered judgment, and defendant appeals.

The suit was originally brought against the defendant and the West End Packing & Provision Company. At the beginning of the trial in the court below plaintiff dismissed as to the West End Packing Company.

The petition alleges that plaintiff was a laborer in the employ of defendant at its plant and factory in the city of St. Louis; that defendant in operating its business at said plant used a machine consisting of a hopper, cylinder, crusher, and knives in making sausage and chopping meat; that this machine was operated by power, transmitted to it by belts and pulleys; that he was ordered and directed by defendant to clean said machine or grinder, and at the time said machine was stopped and not in motion. The negligence of defendant is charged in the following language:

"* * * The said machine by reason of the negligence of the defendants was suddenly and without warning or notice to the plaintiff started and caused to revolve, and the wheels and cylinder and crusher and knives thereof to revolve and turn, whereby the plaintiff's right hand and thumb and fingers thereof were caught in said machine. * * *"

The answer was a general denial and a plea of contributory negligence.

Plaintiff was injured while cleaning one of these machines at defendant's establishment. It appears from the testimony that he had worked in a similar plant a number of years under the same foreman and bosses he was working under at the time he was injured. He had gone to work at the plant where he was injured only a few days before the accident took place. The parties for whom he had worked before this had taken over the property of the West End Packing & Provision Company, and the new company was known as the American Packing Company. Plaintiff had been working at this machine where he was injured only an hour or two before the accident happened. The machine consists of a funnel shaped hopper, projecting up through the bottom of which are the knives, which cut the meat as they are revolved when attached to a shaft on which are fastened two pulleys. One is a loose pulley, the other a tight pulley. When it is desired to stop the machine, the belt, by a very simple appliance, is shifted from the tight pulley to the loose pulley. The machine is then stopped, but as soon as the belt is shifted back to the tight pulley it starts the machine. After plaintiff had cleaned the machine and had started to replace the knives, the machinery started with a sudden jerk, and stopped just as suddenly, but not until after plaintiff had received his injuries, which it is unnecessary to describe here, as there is no point made that the verdict is excessive.

One of the principal points relied upon by appellant for reversal is that the petition attempted to aver facts bringing the case within the rule res ipsa loquitur, but plaintiff proved facts to which that rule cannot be applied to sustain a recovery, and that the petition did not state such facts as to bring the case within the rule. In our view of this case, it is unnecessary to decide whether or not, under the allegations in this petition, the rule res ipsa loquitur would apply. Whatever may have been the situation at the time of filing this petition, when this case was submitted to the jury the rule res ipsa loquitur was entirely removed from the case by the proof and by the instructions.

Defendant saved no exceptions to the action of the trial court in overruling its motion to make more definite and certain, nor to its demurrer to the petition. Therefore we must treat the petition, when its sufficiency is challenged, as if no demurrer had been filed; and it will be regarded sufficient after judgment if, after allowing all reasonable implications and intendments in its favor, there appears to be a sufficient statement to apprise the defendant with reasonable certainty, of the character of the action and the issues it must meet.

It has been repeatedly held in this state that a petition which sets out the acts about which the plaintiff is complaining with reasonable certainty and clearness, followed by a general averment that the acts complained of were negligently done, is sufficient. Dieter v. Zbaren, 81 Mo. App. 612; Wyler v. Ratican, 150 Mo. App. 474, 131 S. W. 155; Quinley v. Traction Co., 180 Mo. App. 287, 165 S. W. 346.

The charge of negligence in the petition is the sudden starting of the machinery without warning or notice. This negligence is charged generally, and this we think is sufficient after verdict. White v. Railroad, 202 Mo. 539, 101 S. W. 14; Lefever v. Pryor, 218 S. W. 970.

Appellant objected to the introduction of any testimony, for the reason that the petition did not state facts sufficient to constitute a cause of action, but we think the petition was good against an objection of this kind. Thompson et al. v....