Huss v. Heydt Bakery Co.

• Decision Date: 27 January 1908
• Citation: 210 Mo. 44,108 S.W. 63
• Parties: HUSS v. HEYDT BAKERY CO.
• Court: Missouri Supreme Court

108 S.W. 63

210 Mo. 44

HUSS v. HEYDT BAKERY CO.

Supreme Court of Missouri.

January 27, 1908.

Rehearing Denied February 27, 1908.

1. TRIAL — INSTRUCTIONS — APPLICABILITY TO FACTS.

Where, in an action for injuries to an employé caught in unguarded machinery, the evidence showed that a similar machine, when guarded, had occasioned an accident to an employé operating it, and the machine and its surroundings were described to the jury, and a photograph of the machine and surroundings was in evidence, there was sufficient evidence on which to predicate a charge that, if the machinery could not be safely guarded without materially interfering with the efficient working thereof, the failure to guard was not negligence.

2. APPEAL — INSTRUCTIONS — RIGHT TO COMPLAIN.

Where, in an action for injuries to an employé caught in unguarded machinery, the court, at the request of plaintiff, gave a charge authorizing a recovery if the machinery was at the time so situated as to admit of guards being placed thereon without interfering with its free operation or with necessary access to it, etc., it was not error to charge, at the request of defendant, the converse proposition that, if the machinery could not be securely guarded without materially interfering with the efficient working thereof, the failure to guard was not negligence.

3. JUDGMENT — CONFORMITY TO PLEADINGS.

A party cannot plead one act of negligence as the basis of his action and recover on another and different act.

4. MASTER AND SERVANT — INJURY TO SERVANT — UNGUARDED MACHINERY — NEGLIGENCE — STATUTES — CONSTRUCTION.

Rev. St. 1899, § 6433 [Ann. St. 1906, p. 3217], providing that belting, shafting, etc., in manufacturing establishments, when so placed

as to be dangerous to employés, shall be safely guarded when possible, and, if not possible, notice of danger shall be posted, covers two acts of negligence: A failure to guard machinery that can be guarded, and a failure to post notice of danger where dangerous machinery cannot be guarded; and, in an action by an employé for the failure of the employer to properly guard dangerous machinery which could be guarded, an instruction that, if the machinery could not be safely guarded without materially interfering with the efficient working thereof, the failure to guard was not negligence was not objectionable as failing to state the law, on the ground that, if the machinery could not be guarded, it was the duty of the employer to post a notice.

5. APPEAL — REVIEW — THEORY OF TRIAL IN LOWER COURT.

A case cannot be tried on one theory in the trial court and on another and different theory on appeal.

6. MASTER AND SERVANT — INJURY TO SERVANT — UNGUARDED MACHINERY — CONTRIBUTORY NEGLIGENCE — EVIDENCE — INSTRUCTIONS.

Where, in an action for injuries to an employé, caused by his slipping on a floor and falling into unguarded machinery, the evidence showed that the floor was liable to become slippery, that it was the duty of the employé to keep the floor clean, and that he failed to do so, an instruction that, if the employé failed to keep the floor clean, and if he had fulfilled the duty he would not have slipped, and would not have been injured, the verdict should be for defendant was proper on the issue of contributory negligence.

7. SAME — CONTRIBUTORY NEGLIGENCE — AVAILABILITY AS DEFENSE.

An employer who fails to perform the statutory duty of guarding dangerous machinery which could be guarded may avail himself of the contributory negligence of an employé injured by coming in contact with the machinery.

8. TRIAL — INSTRUCTIONS — REPETITION.

It is not reversible error for the court to give two instructions worded differently covering the same question.

9. MASTER AND SERVANT — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE.

Where an employé knows that a place furnished by the employer is so obviously dangerous that an ordinarily prudent person would not remain at work therein, the employé, if remaining, is guilty of contributory negligence.

10. SAME — EVIDENCE — INSTRUCTIONS.

Where, in an action for injuries to an employé falling into unguarded machinery, a photograph of the situation, together with oral testimony of the surrounding conditions, was before the jury, an instruction that, though the machinery was unguarded, yet if that fact was known to the employé, and the danger of working near the machinery was obvious and known to him, and was so obvious that a person of ordinary prudence would not have continued to work near it, the verdict must be for defendant was proper.

11. TRIAL — INSTRUCTIONS — CAUTIONARY INSTRUCTIONS.

In an action by an individual against a corporation it is not reversible error to charge that in a suit of this kind it is the duty of the jury to base their verdict solely on the evidence and the instructions.

12. WITNESSES — CROSS-EXAMINATION — AFFECTING CREDIBILITY.

It is proper to permit a party to show on the cross-examination of the witnesses of the adverse party that the witnesses and adverse party are members of the same labor union, as bearing on the credibility of the witnesses.

13. APPEAL — PREJUDICIAL ERROR — REFUSAL TO STRIKE OUT PART OF PLEADING.

A party is not prejudiced by the refusal of the trial court to strike out a part of the pleading of the adverse party, where such part was treated as abandoned by the court in submiting the case to the jury.

Woodson, J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; James R. Kinealy, Judge.

Action by Joseph Huss against the Heydt Bakery Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The following is the opinion of GRAVES, J., in division No. 1:

"GRAVES, J.

Action in the circuit court of the city of St. Louis for personal injuries. Defendant is a domestic corporation, engaged in the bakery business wherein it has a certain machine called a `dough mixer.' Plaintiff was the person who operated said machine. The pertinent portions of the petition are: `Plaintiff further states that it was the duty of said defendant company to safely and securely guard the belting, shafting, gearing, and drums of the establishment when possible, and when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties. And that said defendant company failed to safely and securely guard the belting, shafting, gearing, and drums of its establishment, and that the said failure was in this, to wit: That the said gearing and cogwheels of the said dough-mixing machine were at and prior to said 9th day of November, 1903, left wholly unguarded, and that said gearing, belting, shafting, and drums were dangerous to plaintiff and persons employed therein or thereabout while engaged in their ordinary duties. And that said gearing, belting, shafting, and drums could easily have been guarded so as to prevent injury to plaintiff and persons while in the exercise of their ordinary duties. Plaintiff further states that defendant negligently permitted the floor of said establishment, particularly in the neighborhood of said dough-mixing machine, to become dangerous and unsafe for any person to walk over, and that defendant allowed a barrel or barrels of baking oil to stand within a few feet from said machine, from which quantities of baking oil did escape and make the floor in the neighborhood of plaintiff's said machine, on said 9th day of November, 1903, greasy and slippery so that the said floor could not be walked over without danger of falling. Plaintiff further states that on or about the said 9th day of November, 1903, while plaintiff was in the active discharge of the ordinary duties of his employment, and while plaintiff was in the exercise of ordinary care and prudence on his part, plaintiff slipped and fell by reason of the slippery and greasy condition of said floor, whereby plaintiff's left hand was thrown into the said cogwheels and gearing of said dough-mixing machine, whereby he lost his first three fingers and part of the palm of his said hand, and his little finger was permanently stiffened and crippled, and his thumb was broken and bent and permanently stiffened and crippled, and his entire hand thus rendered forever useless. That the said injuries received by plaintiff were caused solely by the failure of the defendant to guard the said gearing and cogwheels of said dough-mixing machine, as it was the defendant's duty to do, and by reason of the defendant failing to keep the floor of its establishment in the neighborhood of said dough-mixing machine in a reasonably safe condition, as it was defendant's duty to do. Damages in the sum of $20,000 were claimed. Defendant's answer consisted of a general denial, a plea of assumption of risk, and a plea of contributory negligence. To this answer plaintiff moved to require defendant to make its plea of contributory negligence more definite, and demurred to the defense of assumption of risk. Both motion and demurrer were overruled, plaintiff saving his exceptions and preserving them in a term bill of exceptions. Later a reply in the nature of a general denial was filed. Such are the issues. Upon trial a verdict, signed by 11 of the 12 jurors, was returned in favor of defendant, and a judgment entered in accordance therewith. After the adverse ruling of the trial court upon a timely motion for new trial, the plaintiff duly perfected his appeal to this court. The alleged errors charged against the trial court consist of the giving of certain instructions in behalf of defendant, as well as the admission of certain evidence in its behalf, all of which will be noticed in the course of the opinion.

"1. The first complaint lodged in the brief filed by plaintiff is the giving of instruction No. 1 for defendant. This instruction reads: "The court instructs the jury that, if you believe from the evidence that the gearing upon the machine in question could not be safely and securely guarded without materially interfering...