Hoffman v. Philip A. Rohan Boat, Boiler & Tank Co.

• Decision Date: 03 May 1927
• Docket Number: No. 19594.,19594.
• Citation: 294 S.W. 758
• Court: Missouri Court of Appeals
• Parties: HOFFMAN v. PHILIP A. ROHAN BOAT, BOILER & TANK CO.

294 S.W. 758

HOFFMAN v. PHILIP A. ROHAN BOAT, BOILER & TANK CO.

No. 19594.

St. Louis Court of Appeals, Missouri.

May 3, 1927.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Action by Henry Hoffman against Philip A. Bohan Boat, Boiler & Tank Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Koerner, Fahey & Young, of St. Louis, for appellant.

Foristel, Mudd, Hezel & Habenicht, of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries. The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $1,000, and defendant appeals.

Plaintiff was in defendant's employ as a boiler maker's helper, and had been so employed for about five years prior to his injury. On August 4, 1922, he was working as helper to James Owens in riveting together angle irons on the inside of a semicircular steel caisson or frame. In the pieces of iron to be riveted together were holes through which the rivets were to be driven. Another helper would place a hot rivet in one of these holes, and it then became plaintiff's duty to hold an iron bar against one end of this rivet while Owens hammered the other end with a pneumatic hammer. Sometimes the holes in the pieces of iron that were to be riveted together were not quite in line, or were not round and smooth, and it was then necessary to ream these holes before driving rivets through them. This reaming was done by driving a steel pin through the holes.

At the time here in question, Owens, the boiler maker, was engaged in reaming one of these holes. While this work of reaming was in progress, plaintiff was raising the iron bar, which was swung on a chain block, getting it even with the hole, so as to have it in readiness when the time came for driving a rivet. Owens was on one side of the irons to be riveted together, and plaintiff was on the other side of these irons and at a distance of three or four feet from Owens. Owens was driving this reaming pin with the pneumatic hammer, and, while so doing, the die of the hammer was shot out or ejected from the hammer by the air pressure behind it and struck plaintiff's lip.

The pneumatic hammer used by Owens is a tool designed on the principle of a gun; it is sometimes called an air gun. It has a cylindrical barrel, in which is a plunger which is forced forward by compressed air. A metal die is inserted in the end of the barrel, and the plunger strikes this metal die, forcing it against the rivet or other object.

The petition charges negligence on the part of the defendant as follows: (1) That the pneumatic hammer or air gun with which the work was being done was defective in that the spring with which the pneumatic hammer or air gun was provided for the purpose of holding or sustaining the metal die in its position in the pneumatic hammer or air gun while the same was in use was broken and would not hold and sustain the die in its position in the hammer or air gun; and (2) that defendant negligently and carelessly failed to exercise ordinary care to provide and equip the pneumatic hammer or air gun with a guard to prevent the die and plunger from being ejected therefrom, although an effective and efficient guard for this purpose could easily have been provided without impairing the effectiveness of the hammer or air gun for any purpose or interfering with its use as a riveter or reamer. It was further charged that the plaintiff repeatedly complained to defendant of the defective and unguarded condition of the hammer, and that the defendant assured plaintiff that it would rectify said condition.

The answer is a general denial.

The evidence tended to show that the pneumatic hammer or air gun which was responsible for plaintiff's injury was furnished by defendant to do the work plaintiff and his coemployee were engaged in at the time the plaintiff was injured. The evidence further shows that this pneumatic hammer was not equipped with a guard or other device to prevent the ejection of the die when the hammer was in use. It was also shown that there was on the market a guard, known as the M-S safety device, which could have been attached to this pneumatic hammer at a moderate cost, which would have prevented the die from being ejected under pressure, without interfering in any way with the efficient and practical operation of the hammer, and that this guard had been in frequent use, though not in general use for 10 or 12 years prior to the plaintiff's injury. It was shown that the function of the spring, charged in the petition to have been defective, was to keep the die from falling out when the hammer was not in use—that is, when the hammer was not being used under air pressure—and that the spring when in proper condition would not hold the die against pressure and was not provided for that purpose. The assignment of negligence relative to the defective condition of this spring was abandoned by the plaintiff at the trial, and the cause was submitted to the jury solely upon the assignment of negligence relative to the failure of defendant to provide a guard to prevent the ejection of the die while under pressure.

Defendant assigns error here upon the giving of plaintiff's instruction No. 1, as follows:

"The court instructs the jury that if you find and believe from the evidence that on or about the 14th day of August, 1922, the plaintiff was in the employ of the defendant as a boiler maker helper, and that as such employee was put to work by the defendant riveting, or preparing for riveting, or assisting in preparing for riveting, pieces of steel and angle iron for the construction of a semicircular caisson, then you are instructed that it was the duty of the defendant to exercise ordinary care to furnish the plaintiff with a reasonably safe place in which to work and reasonably safe tools and appliances with which the work was to be done, whether by the plaintiff himself or while assisting the other employees of the defendant to do such work; and if you further find and believe from the evidence that on or about said day, and in the discharge of his duty to defendant, as such employee, the plaintiff was required to assist a boiler maker of the defendant as such above-described work, and that in the doing thereof the said boiler maker was required to use an appliance known as a pneumatic hammer or air gun, and which was furnished by the defendant for such purpose, and that said hammer or air gun was so constructed and its principle of operation was such that there was likelihood of the die thereof being shot out or ejected while the said hammer was being used, and that said hammer could have been equipped with a guard or device which would have prevented the ejection of said die without interfering with the free use and operation of the hammer, or impairing the effectiveness, and at a reasonable cost, and that said device or devices were known to the defendant, or in the exercise of ordinary care could have been known to said defendant; and if you further find that said hammer or gun was not equipped with such guard or device, and that by reason thereof it was not reasonably safe for the plaintiff to be in and about work that was being done with such hammer, while in the performance of such duty, and the place where he was required by his duties to be working, and that the defendant knew, or by the exercise of ordinary care could have known, that said hammer or gun was not reasonably safe because not equipped with such guard or device, if you find that it was unsafe in such respect, and then, if you further find that at the time of the injury complained of plaintiff, while in the discharge of his duty, was...