Huss v. Heydt Bakery Co.

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

108 S.W. 63

210 Mo. 44

JOSEPH HUSS, Appellant, v. HEYDT BAKERY COMPANY

Supreme Court of Missouri, First Division

February 27, 1908

Appeal from St. Louis City Circuit Court. -- Hon. Jas. R. Kinealy Judge.

Affirmed.

Selden P. Spencer and Adolph R. Grund for appellant.

(1) The court erred in giving instruction 1 for defendant, for the reason that the instruction has absolutely no evidence to warrant it, and is against the uncontradicted physical facts. State v. Turlington, 102 Mo. 663; State v Anderson, 89 Mo. 332; State v. Bryant, 102 Mo 32. (2) The court erred in giving instruction 3 for defendant, for the reasons: (a) it is not the law; (b) it completely ignores section 6433, Revised Statutes 1899, upon which the case is bottomed; (c) it assumes the failure of plaintiff to fulfill his duty, a question which should have been left to the jury; (d) because the instruction is without evidence to support it. (3) The court erred in giving instruction 6 for the defendant because: (a) it is not the law. Stoddard v. Railroad, 65 Mo. 521; Thorpe v. Railroad, 89 Mo. 662. (b) Because there is no evidence to sustain it.

Wise & McNulty and Seddon & Holland for respondent.

(1) The court did not err in giving instruction 1 for defendant. There is ample evidence to sustain the giving of this instruction. (2) The court did not err in giving instruction 1 given at the instance of defendant. Bair v. Heibel, 103 Mo. 621; Epperson v. Postal Tel. Co., 155 Mo. 346. (3) The court did not err in giving instruction 3 at the instance of defendant. There is ample evidence upon which to base this instruction and it correctly states the law. Schaub v. Railroad, 106 Mo. 74. (4) The court did not err in giving instruction 6 at the instance of defendant. Said instruction correctly states the law with reference to assumption of risk. Curtis v. McNair, 173 Mo. 270; Blundell v. Miller Elevator Co., 189 Mo. 552.

GRAVES, J. Valliant, P. J., and Lamm, J., concur; Woodson, J., dissents in separate opinion filed.

OPINION

IN BANC.

PER CURIAM.

-- The following opinion by Graves, J., in Division No. One, is adopted as the opinion of this court.

In this Gantt, C. J., Burgess, Valliant and Lamm, JJ., concur; Fox, J., concurs in the result; Woodson, J., dissents in separate opinion.

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 cog-wheels of the said dough-mixing machine was 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 cog-wheels 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 cog-wheels 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 on 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 eleven of the twelve 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.

I. The first complaint lodged in the brief filed by plaintiff is the giving of instruction numbered 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 with the efficient working of the machine in question, then and in that case the failure to so guard said gearing constituted no negligence on the part of defendant."

The objection urged to this instruction is two-fold: First, that there is no evidence upon which to base it, and, secondly, plaintiff says: "The said instruction number 1 for defendant is further objectional in that it does not state the law, for if the machine could not be guarded, it was the duty of defendant to post a notice to that effect. Of this duty no mention is made in the instruction."

There is evidence in the record to the effect that a similar machine when guarded had occasioned an accident to an employee working thereat. The machine and its surroundings were described to the jury and a photograph of the machine and its surroundings was in evidence. With this in the record, it cannot be said that there was no evidence upon which to predicate the instruction.

But going a step further, the plaintiff in his instruction numbered 1 required the jury to find that said machinery could be protected or covered. The language used by him in this instruction is: "And if you further believe that such dough-mixing machine and the belting, gearing, drums and cog-wheels thereof were at the time so situated as to admit of guards being placed upon such belting, drums, gearing and cogwheels, without interfering with their free operation or with necessary access to them or with necessary passageway by or around them," etc.

Now, the instruction numbered 1 for defendant simply placed before the jury the converse of the proposition presented by plaintiff's instruction. Under such circumstances there was no error in giving the instruction for the defendant.

Nor is the instruction subject to the second criticism made by plaintiff. Plaintiff's cause of action is not based upon the ground that this machinery could not be protected, and therefore defendant was negligent in not posting a notice as required by Revised Statutes 1899, section 6433, but is based upon the negligent act of the defendant in failing to guard a machine which the plaintiff alleged could be guarded. A failure to post a statutory notice is not the negligence relied upon by the plaintiff. A party cannot plead one act of negligence as the basis of his action, and have a recovery upon another and different act of negligence. The section of statute above mentioned is as follows:

"The belting, shafting, gearing and drums, in all manufacturing, mechanical and other establishments in this State, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments."

Under this statute and the two separate clauses thereof, two acts of negligence are covered: First, where there is machinery that can be guarded, then a failure to guard it is negligence. Second, where the machinery is dangerous and cannot be guarded, then a notice of its dangerous character must be posted and a failure to...