Holman v. E. E. Souther Iron Co.

• Decision Date: 03 January 1911
• Parties: HOLMAN v. E. E. SOUTHER IRON CO.
• Court: Missouri Court of Appeals

133 S.W. 379

152 Mo. A. 672

HOLMAN v. E. E. SOUTHER IRON CO.

Springfield Court of Appeals. Missouri.

January 3, 1911.

1. MASTER AND SERVANT (§§ 101, 102)—OBLIGATION OF MASTER.

A master must furnish a servant a reasonably safe place and reasonably safe appliances in and with which to work.

2. MASTER AND SERVANT (§ 221)—INJURY TO SERVANT—ASSUMPTION OF RISK.

Where a servant complained to the master's foreman of the danger from the proximity of another machine to the one he operated, and received assurances that it was not dangerous, and that the machine would be moved on the following day, the servant continuing work, reasonably believing that by proper care he could safely operate the machine at which he worked, did not assume the risk.

3. MASTER AND SERVANT (§ 129)—INJURY TO SERVANT—"PROXIMATE CAUSE."

An operator of a machine in attempting to suddenly stop it by drawing his foot from the treadle in the usual way, slipped and was injured because his foot, instead of reaching the floor struck against the pulley of another machine placed too near him. He had complained to the foreman of the proximity of the latter machine and had been urged to continue work, with the assurance that it was not dangerous and that the machine would be moved the following day. Held, that the proximate cause of the accident was the proximity of the machine, authorizing a recovery, the "proximate cause" of an injury being that cause which in natural and continuous sequence, unbroken by an intervening cause, produces the injury, the efficient cause or the one that necessarily sets other causes in operation.

4. MASTER AND SERVANT (§ 265)—CONTRIBUTORY NEGLIGENCE—BURDEN OF PROOF.

Proof of contributory negligence of a servant suing for a personal injury rests on the master, since the law will not presume the negligence of the servant.

5. NEGLIGENCE (§ 136)—PROXIMATE CAUSE— QUESTION FOR JURY.

The questions of the proximate cause of an injury and, whether the injurious consequences that resulted from one's negligence ought reasonably to have been foreseen, are ordinarily for the jury.

6. MASTER AND SERVANT (§ 226)—INJURY TO SERVANT — ASSUMPTION OF RISK — NEGLIGENCE OF MASTER.

Where a master's negligence, resulting in an injury to a servant, is proven or conceded, the question of assumption of risk is eliminated.

7. DAMAGES (§ 210)—PERSONAL INJURIES —MEASURE—INSTRUCTIONS.

Where, in an action for personal injuries, the allegation in the petition that plaintiff was permanently injured was proved, and the evidence showed that the plaintiff, before the accident, earned from $10 to $12 a week of 5½ days, that he was idle 3 months by reason of his injury, and that since then had earned only $7.50 a week of 6 days, and instruction that the jury in estimating the damages must consider plaintiff's physical condition before and since the injuries, the physical pain suffered on account of the injuries, his loss of time and damages did not authorize the recovery of damages not pleaded and proved.

Appeal from St. Louis Circuit Court; G. A Wurdeman, Judge.

Action by George F. Holman against the E. E. Souther Iron Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Respondent's attorneys have stated in their brief that the following statement appearing in appellant's brief is so fair, full, and comprehensive that it is adopted as their own. It is therefore inserted as containing the admitted facts in this case:

"This is an action for damages for personal injury. The plaintiff in his petition charged the incorporation of the defendant, and alleged that it was engaged in the business of manufacturing, and in such business was operating a large number of machines run by electric power; that among them was a machine known as a toggle machine used for bending and crimping steel sheets for ceiling, siding, and roofing. It is further alleged that the plaintiff was employed by the defendant, and that in the course of his employment he was required to operate the toggle machine. It is further alleged that the defendant was guilty of negligence in permitting a certain machine known as a brick-making machine to be placed and to remain so near to the treadle of the toggle machine as to interfere with the free operation thereof, and with the safety of the operator; that said brick machine had been so placed a number of times, and had been removed by the defendant on plaintiff objecting thereto; that on March 16, 1908, while the plaintiff was engaged in operating the toggle machine, the foreman or superintendent again moved said brick-making machine with its flywheel or pulley up to within about two inches of the treadle of the toggle machine; that plaintiff objected and demanded the removal of said brick-making machine, and that said foreman or superintendent promised plaintiff that said machine would be removed in a short time, and instructed plaintiff to continue at his work at said toggle machine in the meantime; that on said day, while the plaintiff in the course of his duty was engaged in operating said toggle machine, the sheet of steel then being worked in said toggle machine `buckled' so that the plaintiff, in order to control the operation was obliged to quickly remove his foot from said treadle; that by reason of the proximity of said brick machine, and the fly or pulley wheel thereof, plaintiff was unable to quickly remove his foot from said treadle, and in consequence lost his balance, and his fingers came in contact with the mechanism of the toggle machine, crushing the index finger on each of his hands. Plaintiff's injuries are then alleged in detail and his damages set forth. The petition then proceeds as follows: `Plaintiff says that the injuries above alleged were caused as the direct and immediate result of the carelessness and negligence of the defendant's foreman or superintendent in placing said brick-making machine with its flywheel or pulley so close to the treadle of the aforesaid toggle machine as to prevent plaintiff from operating the same with safety, and in failing to remove same at plaintiff's request, and in requiring plaintiff to continue at work in operating said toggle machine, while said brick-making machine, with its flywheel or pulley was in a position of danger to plaintiff.' The petition closes with a prayer for damages in the sum of $4,000.

"The answer consisted of a general denial, a plea of contributory negligence, and a plea of assumption of risk. The reply was a general denial.

"At the conclusion of the evidence, the court gave the jury instructions at the request of both sides after overruling defendant's demurrer to the evidence. The jury returned a verdict in favor of the plaintiff for the sum of $1,500, which the court, after considering the motion for a new trial, reduced by a remittitur in the sum of $350. The remittitur was filed, and a new judgment entered for $1,150. The motion for new trial was then overruled, and the defendant appealed to the St. Louis Court of Appeals. (The cause was thereupon transferred to this court. Before the argument, the appellant by its attorneys expressly waived the question of the jurisdiction of this court to hear and determine the cause, and the same was submitted on this agreement. Respondent's attorneys did not argue the case, but, in writing, expressly waived all pleas to our jurisdiction.)

"The evidence offered by the plaintiff tended to show that he had been employed by the E. E. Souther Iron Company, which was a corporation, doing business in St. Louis at the time of his first employment, and at Wellston, in St. Louis county, at the time of his injury. The Souther Iron Company makes roofing and ceiling iron, sheet iron, and general iron products. Its machines are operated by electricity. Plaintiff had been employed by the defendant since about November, 1905. He operated different machines at defendant's place—a royal cap machine, a corrugator, and a toggle machine. He had worked at the toggle machine different times, on and off, for a year, but not continuously, as the machine had sometimes broken down. The toggle machine is a press about 14 feet long and standing about 9 feet high. It has a bench or table that measures about 36 inches wide, with tables on there which makes it about 4 feet 6 inches wide. It has an open space where the operator stands, and has a treadle for the operator. The machine is run by a clutch, and as it turns over, it clutches the gearing and that starts it and stops it. When plaintiff was hurt he was using the toggle machine and using sheets that were 8 feet long and 28 inches wide. It was what they called the 28-inch gauge, a very thin grade of sheet iron. When the operator would put his foot on the treadle of the machine, the die would come down. The treadle has a quick clutch, and when one's foot touches it slightly it will operate. The machine was stopped by taking the foot from the treadle. When the foot was once pressed on the treadle, the machine would continue to operate until it was released by the raising of the foot. The treadle was then held down by the operator's foot while the machine was in motion, and in case it was necessary to stop the machine the foot had to be lifted off the treadle. The treadle would fly up the instant it was released by the foot. If the machine had to be stopped quickly it was necessary to take the foot off the treadle quickly. The treadle was just large enough to afford good foot room. It had a smooth, square surface on top on which the operator put his foot. When he did that, it would come down, and that pulled the clutch, and the gear turned around and the upper die came down. The upper die would then press the galvanized iron into the desired shape. The sheets of galvanized iron were pushed in by the plaintiff's fellow servant, called his `partner,' from the opposite side of the machine. When the sheet was placed and in readiness, the plaintiff would put his foot on...