Hirsch v. Freund Bros. Bread Co.

• Decision Date: 28 June 1910
• Citation: 150 Mo. App. 162,129 S.W. 1060
• Parties: HIRSCH v. FREUND BROS. BREAD CO.
• Court: Missouri Court of Appeals

129 S.W. 1060

150 Mo. App. 162

HIRSCH v. FREUND BROS. BREAD CO.

St. Louis Court of Appeals. Missouri.

June 28, 1910.

1. MASTER AND SERVANT (§§ 154, 155)—OBVIOUS DANGERS—DUTY TO INSTRUCT.

Neglect of duty may not be charged against the master for an omission to warn, either when

the servant is apprised of the particular peril or where it is obvious to every one.

2. MASTER AND SERVANT (§ 158) — INJURIES TO SERVANT — DANGERS KNOWN TO SERVANT — FAILURE TO INSTRUCT — PROXIMATE CAUSE.

Where a servant knew or might have known the particular danger which inflicted his injury, the fact that he was not instructed about it by the master is immaterial, as the omission to instruct him is in no sense the proximate cause of the injury, when he had prior thereto acquired the information from another source.

3. MASTER AND SERVANT (§ 233) — SELECTION OF DANGEROUS PLACE TO WORK — CONTRIBUTORY NEGLIGENCE.

Where there are two places open which one may assume of his own free will in performing a task, it is his duty to select the safer of the two, and if he selects the unsafe place which results in his injury, he is guilty of contributory negligence as a matter of law.

4. MASTER AND SERVANT (§ 278) — INJURIES TO SERVANT — EVIDENCE — NEGLIGENCE.

In an action by a servant for personal injuries the mere fact that the foreman shouted at him does not tend to show negligence on the master's part, where it does not appear that it tended to disconcert or excite the servant, and thus subject him to an extra hazard.

Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Action by Philip Hirsch against the Freund Bros. Bread Company, a corporation. Judgment for defendant, and plaintiff appeals. Affirmed.

Lee Sale, for appellant. Jones, Jones, Hocker & Davis, for respondent.

NORTONI, J.

This is a suit for damages accrued on account of personal injuries inflicted through the alleged negligence of defendant. At the conclusion of the evidence the court instructed a verdict for defendant, and plaintiff prosecutes the appeal.

Defendant owns and operates a bakery in the city of St. Louis and plaintiff was in its employ at the time of his injury. It appears plaintiff had been engaged in defendant's service about the bakeshop for nearly four years. His duties pertained somewhat to that of a common laborer. He would aid at whatever seemed to be necessary for the time being. Defendant had several machines in the bakery which were propelled by electric power, and plaintiff had worked about those which are called the dough machines but had never before the day of his injury had experience with the particular machine by which he was injured. He received a broken forearm as a result of permitting it to pass between what is known as a screw-arm and a fixed horn on a machine at which he was working, while the screw-arm was ascending. It is somewhat difficult to describe the machine and the parts which inflicted the injury so as to be understood, but we will attempt to delineate its principal features. The machine was used in cutting the dough into loaves prior to baking. Plaintiff is a German and gave his testimony through an interpreter. The description of the machine on which he was injured is therefore meager, indeed, but we infer that it was about four feet in height and two feet wide. On the top of the machine there was a hopper in which the dough was placed; as the machine operated, the dough passed from the hopper down upon certain knives which cut it in size for loaves of bread, and those were conveyed out of the machine on to a table standing immediately north of it, from whence they were removed to the oven. The machine fronted to the north and the table on which the cut loaves were deposited was adjacent on that side. This table was probably three feet wide from east to west, and five feet long from north to south. On the west side of the machine and at about the elevation of plaintiff's knees above the floor, there was an endless chain which operated in connection with the machinery attached thereto. This chain, however, is really unimportant in the case, for we have been unable to discover that it in any manner contributed to plaintiff's injury. Immediately over the table on which the loaves of bread were deposited, as they came from the machine, there appears to be affixed to the machine what is known as a "screw-arm." This screw-arm which inflicted plaintiff's injury we understand to be about 2½ feet in length; one end of it was affixed to the machine and the other was free. As the machine operated, the screw-arm constantly moved up and down from a horizontal to a vertical position. It is to be inferred from the testimony that this particular part of the machine did not move with great celerity; nevertheless, when the machine was in operation the free end of it was constantly moving up and down from a horizontal to a vertical position. On either side of this screw-arm, and we infer in close proximity thereto, were two iron or steel extensions on the machine, spoken of in the evidence as "horns." We are not advised as to the purpose of these horns, but it is clear enough that they were iron pieces of the machine extending from the machine to the north, and one was on either side of the screw-arm which passed up and down between them. It appears the purpose of the screw-arm was to adjust the knives inside of the machine for cutting the dough into different sizes for the loaves of bread. In the very end of this screw-arm, that is, the free end, was a screw by which the knives in the machine were adjusted on turning the screw at the head of the screw-arm with the fingers. About six or eight inches from the outer or free end of the screw-arm there was a small thumb screw by which the adjusting screw was made fast after the particular size of a loaf of bread had been gauged. At the time of his injury, plaintiff was engaged at this machine, and in the act of adjusting the same to form a loaf of a different size from that which the machine had been cutting. He says both of his hands were employed; the one turning the screw in the very end of the screw-arm, and the other in adjusting the thumb screw about six inches between it and the machine. While thus engaged, the screw-arm ascended, as was usual with the progress of the machine, and his forearm was caught under the protruding horns on either side of the screw-arm so that it was greatly lacerated and broken. Plaintiff had never worked about this machine before the day of his injury. It had recently been installed in the bakery and was operated only twice before. The first time it was operated by and under the direction of an expert mechanic who installed it. The second time it was operated by the foreman of the bakery, in company with one of the proprietors. Plaintiff had seen those engaged about it and noticed them operating it, but paid no particular attention. Plaintiff came on duty on the day of his injury at 2 o'clock in the afternoon and was informed by the foreman that he should work at the machine. The foreman accompanied him to the machine, showed him how to adjust the screw and the screw-arm for the purpose of making the different sized loaves of bread, and instructed him to weigh the bread when he readjusted the sizes, until he had set the machine to a proper weight for the different loaves. Plaintiff says the foreman gave him no instructions about the dangers of the machine other than not to come in contact with the moving endless chain on the west side thereof, which operated about the height of a man's knees above the floor but that he demonstrated to him how the machine was to be used and the purpose of the screw-arm by adjusting the same in his presence. It was perfectly obvious to any one possessed of the sense of sight that this screw-arm passed up and down between the two iron horns extending on either side of it, but, according to plaintiff, the foreman omitted to warn him of the dangers which that part of the machine suggested.

At the time of injury, plaintiff was standing on the west side of the machine and operating the same, as this appeared to be a more convenient place for him to deposit dough in the hopper. The quantity of dough from which the hopper was occasionally filled was situate on the southwest side of the machine. Plaintiff says there was a space of about 18 inches between the west side of the machine and the table on which the dough was situate. The foreman did not instruct him to stand on the west side of the machine. Indeed, the only instruction which appears to have been given by the foreman, in so far as that side of the machine is concerned, was to the effect that he should beware of the chain which operated there. Plaintiff testified pointedly that the foreman did not instruct him to stand on the west side of the machine when it was operating, and he says, too, that at the time the foreman demonstrated to him how the machine should be operated, both he and the foreman stood on the east side and it appears the southeast corner of the table on which the cut loaves of bread were...