House v. St. Louis Car Co.

• Decision Date: 03 February 1925
• Docket Number: No. 18891.,18891.
• Citation: 270 S.W. 135
• Parties: HOUSE v. ST. LOUIS CAR CO.
• Court: Missouri Court of Appeals

270 S.W. 135

HOUSE v. ST. LOUIS CAR CO.

No. 18891.

St. Louis Court of Appeals. Missouri.

February 3, 1925.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to he officially published."

Action by Alvin House against the St. Louis Car Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Fordyce, Holliday & White, of St. Louis, for appellant.

Joseph T. Strubinger and Taylor W. Struhunger, both of St. Louis, for respondent.

DAVIS, C.

This is an action for damages for personal injuries occasioned by a slag flying into plaintiff's eye, caused by defendant's foreman striking a chisel, applied to a hard material from which the slag flew; with a sledge. The jury returned a verdict in favor of plaintiff for $3,500, and defendant appealed from the judgment entered thereon.

Plaintiff's evidence tends to show that about March 15, 1923, plaintiff applied to the foreman of defendant for carpenter work ; that defendant's foreman employed him, but not as carpenter, for he was put to work as a helper in defendant's blacksmith shop, regarding which work he had had no experience; that he was put to work by the head foreman of the blacksmith shop, whom be called the boss, from whom he took orders; that on March 24, 1923, he was working with the blacksmith, acting as his helper; that the particular work the blacksmith and plaintiff were doing at the time of the injury was dismantling a furnace; that this furnace was about four feet long, three and one-half feet wide, and three or four feet high, built of brick inside of an iron frame, which stood above the ground about a foot and a half; that the frame consisted of iron bands three or four inches apart; that the blacksmith worked with a gad or chisel, about two feet long, prying the bricks loose around the wall and causing them to fall to the bottom of the furnace; that the bricks were hot, and plaintiff's duties consisted in using a pair of iron tongs about three feet long in carrying the loosened bricks from the furnace to pile them up; that plaintiff was instructed to pile the bricks a little north of east of the furnace from six to ten feet away; that in so piling the bricks it became necessary for plaintiff to take them one at a time from the furnace to the pile ; that after practically all of the bricks had been so piled plaintiff, after placing a brick on the pile, turned to walk back to the furnace to get another brick, when the foreman, who was on the west side of the furnace with the gad or chisel pointing east toward plaintiff, struck the gad, with a sledge held by the blacksmith against the hard and brittle material which had formed in the bottom of the furnace, known as slag; that the foreman before this time had not used the sledge to strike the gad; that the gad had before that time been used just to pry the bricks loose; that plaintiff had never before had occasion to dismantle a furnace and was inexperienced concerning the work; that prior to the time the gad was struck by the foreman there had been no particles of metal flying about the shop or furnace; that prior to the striking of the blow neither the foreman nor the blacksmith said anything to plaintiff, and he had no warning that they were about to use this sledge or chisel; that plaintiff was facing east, and, as he turned around—he had not more than turned—this lick was struck; that in taking the brick to the pile he was facing east, and as he was turning around he was facing west; that the slag flew east; that his duty required him to go back and forth, carrying the brick as they were loosened; that plaintiff was wearing a pair of glasses, and the slag shattered, the lens thereof, piercing the eyeball.

Plaintiff's witness Sweeney testified as follows:

"Q. What did he do with the hammer; what did Mr. Worthington [the foreman] do with the hammer? A. Why, he took the hammer and hit an iron of some kind, and was chiseling out the bottom of the furnace.

"Q. You say he hit an iron? A. Yes, sir.

"Q. All right; what happened? A. I seen him, hit the lick, and I seen Mr. House's head go back, and I seen blood running out of his eye, and I seen the boss go over to him, and I couldn't say what he said to him. * * *

"Q. What is' his [Worthington's] position down there at the car company? A. He is head foreman in the blacksmith shop. * * *

"Q. Now, before this time—before Mr. House was hurt—had Mr. Worthington been using this sledge? A. No, sir.

"Q. Had, anybody been using it? A. No, sir.

"Q. That was the first time you had seen the sledge used there, that morning; is that right?

A. Yes, sir."

Dr. Shoemaker, an oculist, witness for plaintiff, testified, in substance, that he found the vision of plaintiff's left eye 13 per cent. normal, which means that 87 per cent. of it is gone; that he found a scar in the center of the pupil of the left eye, and also a scar on the lens, which is in the center of the pupil, and this scar is evidently the result of some accident taking place.

Defendant's evidence: The foreman testified, in substance, that he was defendant's blacksmith foreman, and had been for about 23 years; that plaintiff was striking on a chisel bar, when he came up and said, "Let me give you a lift"; that he took the sledge and started to strike on the chisel bar, and plaintiff walked around the furnace to the north and got on what you might say the northeast side of the furnace; that the scans off of the brick and the heated iron makes a crisp, and as you hit on the chisel bar the scalls will fly out, and by accident one of the scalls hit plaintiff's eye; that he had seen plaintiff using the sledge, striking on the chisel bar held by the blacksmith; that before plaintiff was hurt he had struck the chisel bar probably a dozen times; that slag, under these circumstances, always flies; that he told plaintiff to watch the scalls, that is, these little chips that fly out; that he was working on the west side, and plaintiff was to the northeast when he was hurt; that he saw plaintiff go there and stand there; that he knew when he struck that bar pieces of metal would fly; that when he told plaintiff to watch the scalls he said nothing, but he surely could have heard witness; that the chips fly in all directions; that he knew before he struck this bar that they were liable to fly to the opposite side of the furnace; that after the accident he saw a pile of bricks on the east side of the furnace; that he told the blacksmith that morning to take the furnace down; that he saw plaintiff standing there and kept striking the bar, and these chips kept flying. Witness Rosch for defendant testified, in substance, that chips always fly when chiseled out, generally the opposite way from the man who is striking; that he knew plaintiff was on the opposite side of the furnace before this...