Jablonowski v. Modern Cap Manufacturing Company

• Citation: 279 S.W. 89,312 Mo. 173
• Decision Date: 30 December 1925
• Docket Number: 25005
• Parties: STELLA JABLONOWSKI v. MODERN CAP MANUFACTURING COMPANY, Appellant
• Court: United States State Supreme Court of Missouri

279 S.W. 89

312 Mo. 173

STELLA JABLONOWSKI v. MODERN CAP MANUFACTURING COMPANY, Appellant

No. 25005

Supreme Court of Missouri

December 30, 1925

Appeal from St. Louis City Circuit Court; Hon. Franklin Ferriss, Judge.

Affirmed.

Kelley Starke & Moser for appellant.

(1) The court erred in giving plaintiff's Instruction 1 authorizing the jury to find for plaintiff, if defendant or its agents, "placed said board on the floor of said aisle, and negligently failed to remove the same from the floor of said aisle." (a) Because said instruction fails to state what facts would constitute negligence, or a negligent failure to remove the board from the floor of the aisle, and left it to the jury to determine what constitutes negligence or a negligent failure to remove said board from the aisle. Senate v. Railroad, 41 Mo.App. 295; Duerst v. Stamping Co., 163 Mo. 607; Hinzeman v Railroad, 182 Mo. 611; Ravenscraft v. Railroad, 27 Mo.App. 617; Sommers v. Transit Co., 108 Mo.App. 319; Martin v. Railroad, 175 Mo.App. 464; Casey v. Bridge Co., 114 Mo.App. 47. (b) Because said instruction authorizes a recovery by plaintiff, if the jury believed, from the evidence, that any agent of the defendant negligently placed said board in the aisle, without further requiring the jury to find that the defendant knew, or by the exercise of ordinary care could have known, that said board was in said aisle, in time, by the exercise of ordinary care, to have removed it before the plaintiff was injured. Hurst v. Mining Co., 160 Mo.App. 53; Abbott v. Mining Co., 112 Mo.App. 550; Cabanne v. Car Co., 178 Mo.App. 718; Ball v. Neosho, 109 Mo.App. 683. (2) The court erred in giving plaintiff's Instruction 2. Pohlmann v. Car & Foundry Co., 123 Mo.App. 219. (3) The court erred in giving Instruction 12 at the request of plaintiff, because said instruction does not require the jury to award such damages as will reasonably compensate the plaintiff for her alleged injuries. Simmons v. Murray, 234 S.W. 1013; Stephens v. Saunders, 239 S.W. 601; Yarde v. Hines, 238 S.W. 153; Bank of Tulsa v. Daley, 237 S.W. 847. (4) The court erred in overruling defendant's motions to discharge the jury because of prejudicial testimony of plaintiff and her witness, Dr. Meyer, in reference to an insurance company. Trent v. Printing Co., 141 Mo.App. 437; Gore v. Brockman, 138 Mo.App. 231; Chambers v. Kennedy, 274 S.W. 726.

Charles W. Rutledge for respondent.

(1) Instruction 1, plainly required the jury to find that the shield board was in an aisle in common use; that the plaintiff tripped over it and was injured; that the board in the aisle rendered the aisle not reasonably safe for use; that defendant, or its agents, placed it there and negligently failed to remove it, before plaintiff could recover on that assignment. It contained every constituent element of negligence in failing to provide a safe place to work where the master negligently made the place unsafe. See authorities cited by appellant under Point 1 of its brief. (2) The use of the words, "or its agents," without defining the capacity of the agent, if any error, is harmless where the only agent referred to in the evidence as placing the board in the aisle was the president of the defendant corporation. Stratton v. Nafziger Baking Co., 237 S.W. 538. (3) Instructions 2 and 5 are not inconsistent, nor misleading, but state the law more favorably to defendant than the evidence justified. These instructions, separately and together, state the well-settled doctrine that an employee is not required to anticipate negligence of the master and guard against it, but has a right to assume the master has performed his duty to the servant until the contrary appears while in the exercise of ordinary care. Porter v. Railroad, 71 Mo. 77; Porter v. Railroad, 60 Mo. 162; Waldheir v. Railroad, 87 Mo. 37; Devlin v. Railroad, 87 Mo. 545; Henry v. Railroad, 109 Mo. 488; O'Donnell v. Baum, 38 Mo.App. 245. There was no evidence that plaintiff saw the board, or could see it in plain sight, or otherwise, unless she particularly looked for it, and Instruction 5 was not predicated on any evidence in this respect. State ex rel. v. Ellison, 270 Mo. 645. (4) The omission of the words "reasonable compensation," or their equivalent, in Instruction 12 on the measure of damages, was not reversible error, where the verdict was not excessive. Simmons v. Murray, 209 Mo.App. 248; Chilton v. St. Joseph, 143 Mo. 192. Instructions on the measure of damages, not containing the words "reasonable compensation," or their equivalent, have been repeatedly approved by the Supreme Court. Wheeler v. Bowles, 163 Mo. 398; Robertson v. Wabash Ry. Co., 152 Mo. 382; Chilton v. St. Joseph, 143 Mo. 199; Lessenden v. Railroad, 238 Mo. 247; Stid v. Railroad, 236 Mo. 382; Browning v. Railway, 124 Mo. 55; McGowan v. St. L. O. & S. Co., 109 Mo. 518; Torreyson v. United Rys. Co., 246 Mo. 55; Mirrielees v. Wabash, 163 Mo. 470; Flaherty v. Transit Co., 207 Mo. 318. (5) The court correctly ruled in refusing to discharge the jury because witnesses testified that one of defendant's witnesses said he was sent to examine plaintiff by an "insurance company" instead of defendant, as he testified. It was competent to impeach such witness; the jury were entitled to know everything affecting the credibility of such witness, the weight to be given his testimony, his interest in the subject-matter, and his contractual relation, friendships or enmities with regard to parties who are to profit or lose by their verdict. The court erred in holding such evidence was not material and in so instructing the jury. Snyder v. Wagner Electric Co., 223 S.W. 911; Meyer v. Mfg. Co., 67 Mo.App. 389; Kinney v. Ry. Co., 261 Mo. 97; Yates v. Wrecking Co., 195 S.W. 551; Muehlebach v. Brewing Co., 242 S.W. 176; Casselman v. Dunfee, 172 N.Y. 507.

Ragland, J. Otto, Atwood, White and Walker, JJ., concur; Blair, C. J., dissents as to Paragraph IV and result; Graves, J., not sitting.

OPINION

RAGLAND

This case was first heard in Division One and an opinion prepared by one of our Commissioners. His statement of the facts and such of his conclusions of law as met with the concurrence of the majority of the Court en Banc follow:

"Action to recover damages for alleged personal injuries. Respondent on August 6, 1919, the date of her alleged injury, was an employee of appellant in its cap factory in St. Louis. She was employed as a 'cap-sizer,' her work being to sew the right sizes in the caps. This work was done on a sewing machine, placed with other sewing machines on top of a work table at which fourteen girl operators worked, seven on each side of the table. There were four of these tables in the factory, two tables on each side of a center or main aisle and passageway, some five or six feet wide. Working about these tables in the factory were some forty people, both girls and men, but the machine operators were girls. The sewing machines were operated automatically by means of electric motors connected with the sewing machines by power rods and belts. The power rods ran beneath the tables about ten to twelve inches above the floor. The operators sat upon chairs on both sides of the tables directly in front of the sewing machines. In order to prevent the skirts or clothing of the operators from becoming entangled in the power rods and belting, skirt or shield boards were placed lengthwise on both sides of the tables the ends of the shield boards fitting or slipping into slots or grooves molded in the iron standards of the tables to keep the boards in position. The shield boards, when in place, were at the feet of the operators and the lower edges some six or eight inches above the floor. They were approximately the same length as the tables. On the opposite side of the floor of the factory from that occupied by the sewing machine tables was a trimming room, denominated by the employees as the 'cage.' When the operators finished their work, they carried the caps in large bundles from the machines to the 'cage,' where they were left and a new allotment of material to be worked upon was obtained from the person in charge of the 'cage.' Respondent worked at or near the south end of a table in the southwest corner of the floor. She completed the work assigned to her a few minutes before noon of the day in question and started to carry her finished work, about fifteen or eighteen dozen caps, weighing between twenty and twenty-five pounds, in her arms to the 'cage,' or finishing room, on the opposite side of the floor. Respondent testified that she walked around the south end of the table to the main or center aisle, and as she reached a point in the aisle about opposite her machine and immediately behind the chair of the operator directly across the table from her, she tripped on a shield board lying across the center of the main aisle, and fell, striking her right knee on the edge of the board and her right hand upon the floor. She was assisted to her feet by another girl operator and, becoming nauseated, went to the rest room, where she examined her knee and found it to be red and 'the skin was all rubbed.' After lunch, she attempted to resume work, but, after working twenty minutes, her knee became painful and started to swell, causing her to leave her work and return home. Respondent had been in appellant's employ for about six months. She testified that it was customary for her and the other operators to use the main aisle in carrying their completed work to the finishing room; that the bundle of caps which she was carrying at the time extended from her waist-line as high as her chin, so that she could not see the shield board and did not know it was lying across the aisle at the time; that 'this board came from underneath the...