Jaquith v. Fayette R. Plumb, Inc.

Decision Date14 July 1923
Docket NumberNo. 23544.,23544.
Citation254 S.W. 89
CourtMissouri Supreme Court

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

Action by E. D. Jaquith, a minor, by W. E. Jaquith, his next friend, against Fayette R. Plumb, Inc. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

A. E. L. Gardner, of Clayton, and M. U. Hayden, of St. Louis, for appellant.

J. E. Turner, of St. Louis, for respondent.


Plaintiff, a minor, suing by his father as his next friend, recovered judgment for $8,000 on account of personal injuries sustained while in the service of the defendant, a corporation operating a manufacturing plant in St. Louis county.

The amended petition alleges that plaintiff was employed by the defendant to do certain light work such as a boy of his age and size could do, but defendant carelessly and negligently put him to work moving large and heavy iron, steel, or lead tubes and carelessly and negligently failed to keep the floor over which plaintiff was required to work in a safe condition, allowing it to become full of large or dangerous holes or openings, and that by reason thereof one of said tubes fell over and, upon plaintiff's right foot, mashing and bruising the same, and permanently injured and impaired the toes on his right foot, and that by reason thereof plaintiff has and will in the future suffer great pain; that his health and earning capacity have been greatly and permanently impaired, to his damage it the sum of $25,000, for which he prays judgment. The answer is a general denial and a plea of contributory negligence. The reply is a general denial.

The following is a summary of plaintiff's evidence:

I was employed by defendant about February 1, 1920. I was then 16 years of age and weighed about 100 pounds. The defendant manufactured hatchets and hammers. I was employed to harden hammer claws. The hammers were put into metal tubes, heated in a furnace to 800 degrees, and then I dipped them in oil to harden them. I worked at this for about six weeks when I was put to sweeping floors and packing and repacking these tubes with hatchets for a week or two. I was then put to cleaning up around the furnace and moving the tubes into the furnace. The tubes were about one foot in diameter and two and a half feet long and were made of iron or steel about one-quarter of an inch thick. Some of them were filled with bone or charcoal; others were empty and weighed about 75 pounds. Others were filled with hammers and hatchets. I did not know what these weighed. I couldn't lift them. I and a boy named Bauer were storing these in the furnace. We moved them eight or ten feet or more and rolled them up on metal rails into the furnace door. In moving them we stood the tubes up and rolled them on edge the same as you would a barrel. The floor of the factory was of concrete. There was an iron track of two rails; the top of the rails being on a level with the floor. The space between the rails was covered with iron or steel plates about three feet long and eighteen inches wide. Some of these were broken. Others had large holes in them. I had seen this condition for some time. On April 1, I was rolling one of these tubes to the furnace when the tube rolled into a hole. I tried to get this foot out of the way * * * and a fellow of the name of Aubuchon was standing behind me, and could not get out of the way, and that caught my foot, and the tube fell en my foot.


I generally filled the tubes and somebody helped me to roll them. When we got one filled we would tip it over on one end and roll it along on the edge. That is what I was doing when the tube fell. Some of them were empty and some of them had the lids thrown in, we were just storing them. There was no fire in the furnace. The tube I was rolling had lids in it. Bauer helped me pick up the tube after my foot was hurt and put it into the furnace. He always helped me doing that excepting this one tube. Sometimes he would take the tube, and sometimes I would take it. After I got my foot hurt, looked at the plates, and there was holes all over them irons. I could not tell how long they had been there. I never paid no attention to them. I guess they were there when I first went in. The first time I seen these plates when I looked at the furnace, that was about a week or so before the accident. I could not tell how big the other holes were excepting this one that this tube fell into. It was very dark in there; the hole was about a foot in diameter. I did not see the hole at that time, and I didn't pay no attention to it; the same as you walk by a log there—you never seen it and paid no attention to it. I saw the hole was right here, and was reaching over grabbing this tube and rolling it, and it fell just as I set it around.

Q. Do you mean to tell the jury that you did not see that hole there? A. Not at all. Not until after it hit the hole. Aubuchon was behind me when this tube fell on my foot, and I tried to get out of the way, and I backed toward him, and it caught my foot. When the tube fell I bumped into somebody, and turned around and looked and it was him.

On redirect examination witness said that he may have seen the hole before, but that he paid no attention to it until the tube fell. He thought Bauer was in the furnace at the time of the accident. While he worked there the company had not repaired or fixed any of these holes. He did not know whether this hole had been broken in there that day or whether it had been there a week or a month. Witness testified as to the nature of the injury, but it is unnecessary to go into that feature of the case.

At the close of the evidence for the plaintiff and at the close of all the evidence, the defendant offered instructions in the nature of demurrers to the evidence, which were refused.

1. Appellant contends that the evidence fails to establish that the tube was so large and heavy that plaintiff was unable to handle it with reasonable safety to himself and that that condition was the proximate cause of the injury. Considering the size of the metal tube, the manner of handling it, and the injury it inflicted on plaintiff's foot, it must have weighed much more than 75 pounds. Whether a lad of 16, weighing 100 pounds, was physically able to perform the task on a floor having many holes in it, with reasonable safety to himself, was a question of fact and not of law, and on the evidence the jury could also find that the hole in the floor proximately caused or contributed to the falling of the tube on plaintiff's foot. This need not be shown by direct testimony; it may be shown by proof of such facts as logically create the inference that the negligence proved proximately caused or contributed to the injury. Harper v. St. Louis Merchants' Bridge Terminal Co., 187 Mo. 575, 586, 86 S. W. 99. The proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new cause, produces the event and without which the event would not have occurred. Kane v. Mo. Pac. Ry. Co., 251 Mo. 13, 27, 157 S. W. 644.

2. Appellant says, in substance, that, while there were many holes in the floor, there is no evidence that this particular hole had been in the floor long enough for it to have been discovered and repaired in the exercise of ordinary care, and in the absence of such evidence, the allegation of negligence in respect of the existence of the hole is not proved.

Plaintiff had seen many holes caused by broken plates between the rails. None of these had been repaired while he worked for the defendant. He saw the holes after his foot had been injured but, quite naturally, he was unable to say whether "this had been broken in there that day, or whether it had been there a week or a month." "It was very dark in there; the hole was about a foot in diameter." He was a thoughtless, heedless boy, a fact of prime importance in the consideration of this case, and, like other boys of his age, perhaps paid little or no attention to the condition of the floor.

It was the duty of the defendant to have used reasonable diligence to have discovered the defects in the floor in advance, so that its employés would not be exposed to dangers arising therefrom. The defendant cannot excuse itself on the plea that it did not know of the existence of the hole. This hole and many others were there and spoke for themselves. If reasonable diligence would have discovered this hole before the injury, defendant Was negligent in not discovering it. The most casual inspection of the floor on the morning of the injury would have been sufficient. Whether or not defendant exercised due diligence in that respect was a question for the jury.

In Scheurer v. Banner Rubber Co., 227 Mo. 347, 367, 126 S. W. 1037, 1043 (28 L. R. A. [N. S.] 1207, 21 Ann. Cas. 1110), Judge Burgess, speaking for this court, said:

"Taking into consideration the object for which this safety appliance was installed, and the increased danger to which defendant's employees were exposed, in the event such appliance war out of repair and inoperative, we think that inspections at intervals of two or three weeks were not as frequent as reasonably necessary. It is the duty of the master to see that proper inspections are made of the machinery, tools, and appliances with or about which his servants are at work. `The master must use such reasonable tests to discover defects as ordinary prudence suggests. The amount of care required is measured by the circumstances of each case, depending upon the kind of machinery used, the risks incident to its use, and the hazard of the business in which it is used. Whether the defendant could have discovered the defect in the handhold in this case by the exercise of ordinary care, was a question for the jury, and not for the court to determine.' Gutridge v. Railroad, 105 Mo. 520. In section 3786 of Thompson's Work on the...

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