Hild v. St. Louis Car Co.

• Decision Date: 04 March 1924
• Docket Number: No. 18097.,18097.
• Citation: 259 S.W. 838
• Parties: HILD v. ST. LOUIS CAR CO.
• Court: Missouri Court of Appeals

259 S.W. 838

HILD v. ST. LOUIS CAR CO.

No. 18097.

St. Louis Court of Appeals, Missouri.

March 4, 1924.

Rehearing Denied March 18, 1924.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Robert L. Mild against the St. Louis Car Company, a corporation. Judgment, for plaintiff, and defendant appeals. Affirmed.

Taylor, Chasnoff & Willson and Hugo Monnig, Jr., all of St. Louis, for appellant.

Albert E. Hausman, of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries suffered by Plaintiff while in the employ of the defendant at its manufacturing plant in the city of St. Louis. Plaintiff received his injuries while operating a power press or bending machine used for the purpose of stamping or bending small pieces of iron or steel.

Plaintiff testified that he began work for defendant in July, 1920, and that, after working in the mill two or three days, he went to work in defendant's blacksmith shop as a blacksmith's helper; that he was put to work in the blacksmith shop under the supervision of the blacksmith in charge of the shop; that there was a bending machine in the blacksmith shop, and plaintiff was instructed by the blacksmith how to operate it; that the bending machine had two dies, a stationary die fastened to the table of the machine and a movable die fastened to a piston, and had an operating lever located to the left of the operator; that the blacksmith instructed plaintiff to operate the machine by standing up a piece of metal about 3 inches long and about of an inch wide inside the stationary die, placing a wire held between the two fingers against the metal and reaching over with his left hand to throw the operating lever to the right, causing the chamber of the machine to fill with air and the piston to come forward and shape the metal, and when the metal was bent, to open the machine by throwing the lever from the right to the left, and remove the piece of metal from the die with his fingers and throw it to his left; that in the room where plaintiff was working on the bending machine there was a power-driven molding hammer about 18 to 20 feet away from the bending machine; that plaintiff worked on the bending machine three or four different days, for three or four hours on each day, before he received his injury, but he had never worked on a machine of that natule before he went to work for defendant; that he went on the machine the morning he was injured, under orders from the blacksmith; that at that time the power-driven molding hammer was in operation; that sparks from the molding hammer would fly over to his place by the bending machine; that plaintiff was just reaching for a piece of metal already bent, the dies of his machine being open, when sparks from the molding hammer hit him in the face and neck, and he dodged; that in dodging he hit the operating lever of his machine with his left hand or wrist, just knocking it over a little, causing the air to get into the chamber slowly; that when plaintiff reached for the piece of metal to remove it from the machine, the chamber of the machine filled with air, and the piston came forward and the dies closed before he could get his fingers out; that he had never seen the machine operate that way prior to this occasion; that he did not think he had moved the lever when he hit it; that at the time he struck the lever with his left hand or wrist he did not know that he had moved the lever, but that he first knew or realized that he had moved the lever when the machine jammed; that when the blacksmith showed him how to operate the machine, he was shown to get the iron out after it had been pressed by reaching in with three fingers and dragging the iron up until he got hold of it with his thumb, and then to throw it over his shoulder; that the bending machine had a chamber, in which there was fitted a piston, and whenever this chamber filled with air the piston was caused to come forward; that in order to fill the chamber with air plaintiff would move the operating lever to the right with his left hand; that as he sat at the bending machine the lever would be about 10 inches from his left knee; that, at the time he was operating the machine, to get hold of the lever, he would have to reach nearly a foot to his left; that when the sparks hit him, his left hand was resting on his left leg, and he was reaching for a piece of metal; that when the sparks hit him he threw out his left hand, and his hand or wrist struck the lever; that he was in the habit of throwing the lever all the way from left to right to close the dies, and when he did that the lever would travel about an inch and a half or two inches; that when the lever was moved a quarter of an inch to the right, there would be a hesitation of three or four seconds before the dies would close; that when the lever was moved half an inch, there would be a little hesitation, but when it was moved an inch it would not hesitate at all; that on every occasion, when the plunger came in, whether it hesitated or not, it always came in hard and fast; that the hesitation was simply the lapse of time it took the chamber to fill with air; that this lever controlled the opening to the air chamber, and was connected with a supply of compressed air; that when it was opened the compressed air was let into the chamber, and that drove the piston forward and closed the dies; that no adequate screen or guard was maintained between the molding hammer and bending machine, but that plaintiff's face and neck were exposed to the sparks from the molding hammer; that the blacksmith who showed plaintiff how to operate the bending machine got a box and sat on it while operating the machine, and after that plaintiff sat on it while at work; that the blacksmith never used tongs in plaintiff's presence, in the operation of the bending machine on which plaintiff was working; that this blacksmith was the only person who ever showed plaintiff how to work the bending machine, and he used a wire to loosen the pieces of metal after they were pressed, only when they were stuck in the machine; that at the time plaintiff was hurt he was bending small pieces of metal that when bent would make a loop about an inch and a half around and were about an inch wide and an eighth of an inch thick; that the only tongs plaintiff ever saw about the place were about two feet long and weighed about 25 pounds; that he never saw any tongs about the bending machine.

There was evidence tending to show that the bending machine could have been guarded in such a way as to protect the fingers of the operator without interfering with the operation of the machine.

The trial resulted in a verdict for plaintiff for the sum of $5,000. The trial court ordered a remittitur of $1,000 as a condition of overruling the defendant's motion for a new trial. The remittitur was entered, the motion for a new trial was overruled, and judgment was given for $4,000. The defendant appeals.

I. Defendant insists that the plaintiff was guilty of contributory negligence as a matter of law, and that therefore its demurrer to the evidence should have been sustained by the trial court. Stated in more specific terms, the defendant's insistence is that the plaintiff, having involuntarily struck the operating lever of the machine with his left hand, and knowing that he had struck it, and knowing that, if such striking had slightly moved the lever toward the right, the machine would be caused to operate and the dies to close after a slight hesitation, rapidly and with full force, nevertheless, without looking at the lever to see whether or not it had been moved, deliberately put his right hand into the dies and thus received his injuries, and that for this conduct plaintiff should be adjudged guilty of contributory negligence as a matter of law. In support of this insistence defendant cites and relies upon Doerr v. St. Louis Brewing Ass'n, 176 Mo. 547, loc. cit. 556, 75 S. W. 600. In that case the plaintiff attempted to reach down into a crank pit to recover a funnel which had fallen into the pit. The head of a vertical shaft to an engine revolved elliptically in the pit, which was about two feet deep, two feet wide, and two feet long. The shaft revolved at the rate of 18 to 20 revolutions per minute. While reaching into the pit to recover the funnel, plaintiff's arm was caught by the revolving shaft and injured. Whereupon the court said:

"That pit was a dangerous place for a human arm to be in at any time when the shaft was in motion, whether moving at the rate of one revolution every one, two or three seconds. No man has the moral or legal right to put his life or limb to the hazard of a second, unless duty and the exigencies of his situation imperatively demand it. No man of ordinary prudence will do so."

The Doerr Case is clearly distinguishable from the instant case. In that case the plaintiff deliberately thrust his arm into a dangerous pit. The shaft was in motion and plaintiff knew it. He knew the danger of thrusting his arm into the pit when the shaft was in motion. The risk was manifest and the danger imminent. In the instant case the bending machine was apparently inert and harmless when the plaintiff placed his hand between the dies. He had involuntarily struck the operating lever with his left hand, but he did not know that he had moved it until this fact had been made manifest to him by the sudden closing of the dies upon his fingers. In the Doerr Case the plaintiff's action was deliberate. In the instant case plaintiff acted under the influence of sudden pain, set up by the flying of red-hot particles of steel into his face and neck. This sudden distraction was caused, not by any negligent, act or omission of the plaintiff, but by the negligence of the defendant. Certainly it may not be said, in view of these circumstances, that plaintiff performed the act of placing...