Higgins v. Medart Patent Pulley Co.

• Citation: 240 S.W. 252
• Decision Date: 04 April 1922
• Docket Number: No. 16957.,16957.
• Parties: HIGGlNS v. MEDART PATENT PULLEY CO.
• Court: Missouri Court of Appeals

240 S.W. 252

HIGGlNS v. MEDART PATENT PULLEY CO.

No. 16957.

St. Louis Court of Appeals. Missouri.

April 4, 1922.

Rehearing Denied April 20, 1922.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

"Not to be officially published."

Action by Verne C. Higgins against the Medart Patent Pulley Company, to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Jourdan, Rassieur & Pierce, of St. Louis, for appellant.

Foristel & Eagleton, of St. Louis, for respondent.

DAUES, J.

This is an action for damages for personal injuries, alleged to have been received by plaintiff while employed in defendant's manufacturing plant in the city of St. Louis. Trial before the court and jury resulted in a verdict and judgment for plaintiff in the sum of $3,000, from which defendant appeals.

The petition states a cause of action grounded upon a violation of section 7828, R. S. Mo. 1909 (section 6786, R. S. Mo. 1919), which requires the guarding of dangerous machinery.

The petition alleges that while plaintiff was an employé of defendant, and while operating a machine used for straightening shafts, on January 25, 1916, the shaft upon which he was then working left the rollers of the machine, striking him upon the right hand, severely injuring him; that at the time the machine was not guarded, and that same could have been guarded at a small expense, so as to protect plaintiff and others working at same, by placing a piece of iron or wood upon said machine and thereby preventing the shaft from falling and injuring plaintiff and others working thereabouts; that plaintiff was injured by the carelessness and negligence of the defendant in failing to guard the machine, when defendant knew, or might have known by the exercise of ordinary care, that the shaft was likely to drop from the machine and injure plaintiff.

It is alleged that the plaintiff's hand and nervous system have been permanently impaired. The prayer is for $75 medical expenses; loss of earnings, $50, and that plaintiff will in the future be unable to perform his regular duties as a stationary engineer, and prays damages in the sum of $7,500.

The amended answer is: First, a general denial; second, a plea of assumption of risk; and, third, a plea of contributory negligence.

As to the defense of contributory negligence, the answer is as follows:

"Further answering, defendant says that whatever injuries plaintiff sustained, if any, were the results of his own carelessness and negligence, in this, that plaintiff knew, or in the exercise of ordinary care might have known, that the end of the shaft that he was working on might, as the result of the ordinary movements of the machine on which he had placed it, leave the rollers and therefore fall, and that he failed to notice that one end of the shaft was so moving that it would fall off of the rollers at that end unless plaintiff stopped the machine or replaced the shaft on the rollers, and that he failed to stop the machine or replace the said shaft, and as a result thereof said shaft fell off said rollers, and that plaintiff was careless and negligent in this, that, though having control of the operation of the machine used for straightening shafts and the placing of the shafts thereon, he so carelessly and negligently conducted, managed, and operated said machine and the shaft thereon as to cause or permit said shaft to fall off of said roller and injure him, and that the plaintiff was careless and negligent in this, that though said machine was provided with blocks and a carriage easily moved by hand to any desired position, and which could be raised or lowered and form a support and guard to a shaft placed on the machine which would prevent said shaft from falling, nevertheless carelessly and negligently failed to use said blocks and carriage, or either of them, to support and guard said shaft, when by doing so said shaft could not have fallen though it moved off of the rollers."

The reply was a general denial.

The evidence tended to show that plaintiff, at the time of the injury, was working at a machine referred to as a "hand-straightening machine." This machine is constructed of iron, and consists of a stationary bench or frame some 18 or 20 feet long, on the top of which are movable blocks or rollers. By means of a chain hoist and hooks large steel shafts are lifted from the floor onto the blocks upon this frame, for the purpose of straightening imperfect steel shafts after same have been manufactured. The bulges are referred to by the workmen as "bellies." The workman sights along the shaft, and if a bulge or bend is discovered a carriage or straightener is rolled or pushed over such bend, and the power applied to a revolving screw from above; which by pressure straightens the shaft. This carriage operates along the bench on the straightener and is movable along its entire length, so that same may be placed at the point where needed. At the one end where the power was transmitted to the straightener there were no strips or extensions as guards, while at the other end there were strips or extensions on the side to guard the shafting and to hold same in place on the bench. These strips were not attached to the movable rollers or blocks, but were fastened to the frame itself. When the irregularities or wobbles were so small that they could not be detected by the eye, a piece of chalk would be held by the workman against the shaft while revolving to determine where the high places or irregularities were present.

Plaintiff had been working at this machine for about 11 days prior to the date of the accident. The shafts upon which plaintiff had worked during this time ranged from 9 to 20 feet in length. Plaintiff testified that four or five times during the time he was engaged on this machine a shaft had fallen off of same, but that he had managed to get out of the way of same each time. While there were no guard strips on the machine on the end where the power was applied, and where it appears the shaft fell off on this occasion, there were holes in one of the movable blocks suitable for screws to be attached. According to plaintiff, he was at the time of his injury operating the machine by chalking the shaft, holding his right hand on the machine, and steadying same with his left hand, and that while so engaged the shaft fell off the roller onto or off of the frame, striking plaintiff's hand and injuring same.

There was evidence tending to show that the machine could be guarded without interfering with the practical operation of same by placing strips on the rolls at the end where the power was attached. There was testimony also to the effect that the guard or straightening device could not be used as a guard because same would interfere with the sighting along the shaft to be straightened; also, that the shaft might creep forward, and that such would be difficult of detection except by an experienced workman.

On the part of the defendant, there was evidence tending to show that the carriage or straightener with the blocks and rolls as guards would prevent the shaft from falling if same were properly applied; that, plaintiff had been shown how to use the machine; that a fellow workman, named Krinke, was helping plaintiff immediately before the accident, and that at that time the shaft was in the hoist and hooks, and that Krinke told plaintiff to wait until he could get a truck to rest the shaft upon; that Krinke had gone about 10 feet when the shaft fell; that it was not impossible to sight along the shaft when using such carriage as a guard; also that the two bored holes in the bottom of the roll referred to in plaintiff's evidence were used for other purposes than for holding guards; that the machine had been used for 20 years without a shaft having before fallen off of same, and that the shaft was never known to creep after it had been placed on the block; that it was impracticable to guard the machine in any manner suggested by the evidence produced by plaintiff.

Defendant interposed a demurrer to the evidence, which was overruled by the trial court. However, no question is raised here on appeal about the sufficiency of the evidence to go to the jury.

Appellant's assignment of errors are: First, that the trial court erred in admitting improper and prejudicial testimony offered by plaintiff; and, second, that the court erred in refusing defendant's four instructions, numbered I, II, 3, and 5; and, finally, that the verdict is excessive.

The first assignment of error Is addressed to the following testimony:

"Mr. Foristel (Q.): Is this device that is known as the straightener, is that a guard? "Mr. Hezel: I object to that.

"The Court: He is an expert; he may answer that question. (To which action and ruling of the court the defendant, by its counsel, then and there duly objected and excepted, and still continues to object and except.)

"Mr. Foristel (Q.): Is it?

"A. No, sir; that is not a guard."

Counsel for appellant challenges the court's ruling on the ground that said testimony was a conclusion of the witness, an invasion of the province of the jury, and that it was the main issue in the case for the jury to decide. To support such positions counsel cites White v. Ennis Coffee Co. (Mo. App.) 182 S. W. 775; Deiner v. Sutermeister, 266 Mo. 505, lee. cit. 521, 178 S. W. 757, and other cases. Those cases are to the effect that expert testimony is admissible within reasonable bounds, but that such expert testimony should not be allowed to the extent of invading the province of the jury, nor to substitute the opinion of the expert for that of the jury upon the ultimate facts to be decided. Mahany v. Kansas City Rys. Co., 286 Mo. 601, 228 S. W. 821, loc. cit. 826.

The objection to the question was a general one, simply, "I object to that." A general objection to evidence offered without any statement as to the ground of the objection is...