Heeter v. Boorum & Pease Loose Leaf Book Co.

Decision Date07 February 1922
Docket NumberNo. 16950.,16950.
CourtMissouri Court of Appeals
PartiesHEETER v. BOORUM & PEASE LOOSE LEAF BOOK CO.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Theodore Hector, an Want, by Thomas E. Heeter, his next friend, against Boorum & Pease Loose Leaf Book Company. Judgment for plaintiff, and from an order setting aside the verdict and granting new trial, plaintiff appeals. Order granting new trial reversed, and cause remanded, with directions to enter judgment on verdict for plaintiff.

Wilfred Jones, of Maplewood, and Claude O. Pearcy, of St. Louis, for appellant.

Jones, Rocker, Sullivan & Angert, and Earnest A. Green, all of St. Louis, for respondent.

DAUES, J.

Plaintiff, a minor, sues by his father as next friend for injuries sustained by plaintiff while in the employ of the defendant company. A jury in the circuit court returned a verdict for plaintiff for $7,500. Defendant filed a motion for new trial, and the court ordered a remittitur of $3,000. Plaintiff refused to enter such remittitur, whereupon the verdict was set aside and a new trial granted, the court assigning as sole ground for the granting of a new trial plaintiff's failure to comply with the order of remittitur. Plaintiff appeals from the order granting a new trial.

The negligence charged is that defendant failed to exercise reasonable care to provide plaintiff with reasonably safe tools with which to work, by furnishing plaintiff a hammer that was of brittle and badly tempered metal; "that the hammer was chipped and had begun to break off at the bottom and sides when it was used, and said hammer had a rough edge and an uneven surface, all of which was known to the defendant through its agents and servants, or could have been known by the exercise of ordinary care;" that plaintiff was using said hammer for the purpose of straightening a metal stop, and while in the exercise of reasonable care on his part a piece of metal "from said hammer and die because of the defective condition and rough and uneven surface of said hammer, as aforesaid, flew off and struck plaintiff in the eye." The injury alleged is that the piece of metal penetrated the ball of the right eye, necessitating a surgical operation to extract the metal, and that the eye therein has thereby become permanently altered and the sight greatly impaired. The answer is a general denial.

At the time of the injury, to wit, February 4, 1918, plaintiff was 17 years of age and bad been in the employ of defendant for about six months. At the time of the trial he was about 18 years of age.

Plaintiff testified that at the time he was injured his work was divided between riveting and operating a punch press, making metal rings and backs required to hold books together; that he was furnished a hammer when he first began work, and was told that that was all the tools he needed; that the punch press at which he was injured was operated by motor power, the hammer of the press being dropped on the die or metal which was to be cut; that when anything went wrong when he first began using the punch press he went to the assistant foreman, Ben Hager, and was told by Hager that if anything happened with the press plaintiff himself should fix the machine, and that if the stop or gauge should become bent in any way, he was to straighten same, or call the assistant foreman to straighten It; that other operators engaged in similar work were required to do likewise; that plaintiff was never given a different hammer than the one he first received; that after he had used this hammer on the various work he was required to do, he saw that same had become chipped or broken, and that slivers would break off of the hammer as he was using it; that on one occasion, while riveting springs with said hammer, a piece of steel flew off of the hammer, or the spring, and hit him in the hand; that he then went to Hager, and complained that the hammer was either too hard or that something was wrong with it, that a piece had come off and hit him, and that he was "scared" of the hammer; that the assistant foreman told plaintiff that the hammer was just like the rest in stock, and to go ahead and use it. This transpired about a month before the injury.

On the day of the injury to plaintiff Hager set up the job for operation. Plaintiff, in operating the machine, would take small arches and put them on the die. He would adjust same, and then put his foot on a pedal and thus drop the punch. That there were two stops, or gauges, on the machine made of thin sheet steel metal, and that the metal was pliable and would bend. That on this occasion he had either not properly adjusted one of these stops or same had become out of alignment to the extent that the gauge in coming down was bent; that with this small hammer plaintiff began straightening the stop by tapping same lightly with the hammer, and that, the stop being perpendicular when straight, he was required to, and did, strike same horizontally in his attempt to straighten it, and that while so tapping it "a piece of it hit me in the eye—a piece of something. It seemed like it came off of the hammer or the gauge and it hit me in the eye." That the gauge was about four feet from the floor, and plaintiff had to stoop to straighten the stop. That he had to keep his eye in line with the die and see that the stop was plumb. That at the time of the injury no one else was working on any metal within 10 or 15 feet of him, and that there were no steel chips flying about. After the piece of metal struck his eye, plaintiff placed the hammer on the bench, and he then saw that the edge was ragged or rough, and he could see that little pieces of metal had been broken off of the surface of the hammer. The next day at a hospital the metal was extracted through the force of a giant magnet, the metal being drawn sufficiently forward so that an incision into the eye was made and the piece of steel removed. Testifying further, plaintiff said:

"My eye was treated about three months after that. My eye is cut, and a scar there—big scar on my eyeball. I cannot see a thing out of it, and it also gives me great pain sometimes. This pain occurs three or four times in a week."

On cross-examination, plaintiff said: He obtained the hammer from the boy in charge of the toolroom, as directed by Mr. Risch, the foreman; that same appeared to be all right then. That he had used the hammer three or four months before he was hurt. That he was shown by Assistant Foreman Hager how to run the punch press machine, and was told by Hager that he must use the hammer in straightening the stop if same became bent; that that was what the hammer was furnished for. That plaintiff showed Hager the hammer when he received it from the tool boy, and it then seemed to be new; and that he exclusively had used it from that time on until the day of the injury. He testified further:

"When I got hurt a was striking with this hammer at that time; I was using the head of it, or this part (indicating); was striking this (indicating). I was not striking straight down; I was striking from the side. I do not know whether this piece of steel that got into my eye came from the hammer or from the gauge. It looked like it came from the hammer, to me, but I wasn't really sure—I couldn't swear to it. I couldn't say to-day which it was. I know if you strike with a hammer of any kind against any piece of steel in a slanting blow, that pieces of steel will fly from the piece you strike. I do not know whether the fact was well known to everybody in the factory. I knew it the entire time I worked there. I knew if I struck with a straight blow there was less chance for pieces to fly than if I struck it a slanting blow," After three months plaintiff returned to the defendant company and worked for two weeks. He then worked for other machine works for a short while, when he quit work and became a student at college, which he was still attending at the time of the trial.

On redirect examination, plaintiff stated that the stop was about an inch wide, and that he had only about six inches in which to strike same with the hammer; that same was bent about 45 degrees.

"I placed the hammer right flat up against the stop, as flat as I could drive it back. I don't think my hammer glanced from it; I don't know. I tried to hit it full with the face of the hammer."

Dr. Ball, an eye specialist, testified that he treated plaintiff's eye, and that soon after the accident a portion of the eye in front of the pupil was filled with swollen lens substance, and that the eye was almost as hard as a table; that the iris, which is the colored part of the eye, had become adhered to the front part of the eyeball; that plaintiff in this eye has no crystalline, the lens substance having been absorbed; that at the time of the trial the eye had become very much thickened in the posterior sac, so that an acute observer with the naked eye could see that plaintiff has a thickened posterior capsule; that his condition at the time of the trial, so far as the sight was concerned, was that he was able to count fingers only at five inches; that he was for all practical purposes blind in that eye, and permanently so; that the eye would soon turn outward in its socket. Witness explained that no one could tell definitely what effect the injury to the right eye might have upon the left eye. However, the following appears in his testimony:

"Mr. Pearcy (Q.): I will ask you, doctor, if In your opinion this injury to the right eye could cause an impairment in the vision of both eyes. A. Yes, sir."

On cross-examination, the...

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