Jorkewicz v. American Brake Co.

• Decision Date: 19 January 1915
• Docket Number: No. 13891.,13891.
• Citation: 186 Mo. App. 534,172 S.W. 441
• Parties: JORKIEWICZ v. AMERICAN BRAKE CO.
• Court: Missouri Court of Appeals

172 S.W. 441

186 Mo. A. 534

JORKIEWICZ v. AMERICAN BRAKE CO.

No. 13891.

St. Louis Court of Appeals. Missouri.

January 19, 1915.

On Motion for Rehearing, January 19, 1915.

1. MASTER AND SERVANT (§ 189) — OBLIGATION OF MASTER — DELEGATION OF PERSONAL DUTY — LIABILITY.

It is the personal duty of an employer to direct and control the work, and, where one employé is given power and authority to direct and control coemployés in the performance of some branch of the work, the employer is liable for the negligence of the superior employé in the exercise of the power conferred on him.

2. MASTER AND SERVANT (§ 287) — INJURY TO SERVANT — NEGLIGENCE — EVIDENCE.

An employé, engaged as helper in making crank shafts by placing a heated billet of metal in a die and causing it to be struck a number of blows by a steam hammer, was injured by a piece of the heated metal which was sheared off by the die flying into his eye. A coemployé had immediate supervision over all the men engaged in the work, and he directed the hammer driver and the helpers. The accident happened because the billet was not in a proper position to be struck by the hammer when the coemployé directed the striking of the hammer. Held to justify submission to the jury of the question whether the negligence of the coemployé in causing the billet to be struck when improperly placed was the act of a vice principal for which the employer was responsible.

3. MASTER AND SERVANT (§ 190) — INJURY TO SERVANT — NEGLIGENCE — EVIDENCE.

Whether an employé is a vice principal depends on the character of his act complained of and not alone his rank.

4. DAMAGES (§ 132) — PERSONAL INJURIES — EXCESSIVE DAMAGES.

A verdict for $5,000 for injury to an eye requiring its removal is not excessive.

On Motion for Rehearing.

5. DAMAGES (§ 216) — INSTRUCTIONS — REQUESTS — NECESSITY.

An instruction for injury causing loss of an eye, which directs the jury to assess damages in such sum as will compensate plaintiff for the loss of his eye, does not purport to authorize a recovery for loss of earnings demanded in the petition but not proved; and a party desiring to have the jury charged that no recovery could be had for loss of earnings must ask a limiting instruction or he cannot complain.

Appeal from St. Louis Circuit Court; Danl. D. Fisher, Judge.

Action by Julius Jorkiewicz against the American Brake Company. From a judgment for plaintiff, defendant appeals. Affirmed, and motion for rehearing overruled.

A. & J. F. Lee and James A. Waechter, all of St. Louis, for appellant. Henry M. Walsh, of St. Louis, for respondent.

ALLEN, J.

This is an action for damages for personal injuries sustained by plaintiff while in the employ of the defendant corporation as its servant. There was a verdict and judgment for plaintiff, and the defendant appealed.

Plaintiff, at the time of his injury was working as a member of a crew of five men, known as the "hammer crew," in defendant's factory. He was assisting in the making of crank shafts, which was done by placing a heated billet of metal in a die and causing it to be struck a number of blows by a steam hammer, and was injured by a piece of such heated metal which was sheared off by the die when the hammer descended, and which flew into his right eye, destroying the sight thereof and requiring its removal. One Cripps, called the "hammersmith," had immediate supervision over the other men engaged with him in doing the work in question. There were the "heater," who heated the billets at the furnace, plaintiff, and one Thomas, who were the hammersmith's helpers, and a youth named Reinhart, who operated the steam hammer. Upon the occasion in question, one of these billets of metal, which it seems was some 26 inches long, averaging perhaps 4 or 5 inches in diameter, had been heated nearly to white heat by the heater at the furnace. It was to be placed vertically in the die, and, when in proper position, was to be driven into the latter by the hammer. Plaintiff's evidence is that Cripps, who directed the operation, took hold of the billet at the furnace with a pair of tongs, and that plaintiff and Thomas assisted him in lifting it to the die by placing an iron bar beneath the tongs; that under the direction of Cripps it was placed in the die, but was not placed straight, or squarely in position, therein; that Cripps then handed plaintiff and Thomas the tongs; and that they, under Cripps' direction, were attempting, without success, to turn the billet, which was tight in the die, when Cripps told them to take the tongs off and directed young Reinhart to let the hammer descend.

Such is the testimony of plaintiff and other witnesses. And plaintiff testified that he made an effort to tell Cripps that the billet was not in proper position to be struck by the hammer, but did not have time to do so. While it appears that the upper part of the die, which had what is termed a "toe," was larger than the lower part thereof, and that the metal was hastily drawn over toward this "toe" by a "fuller rod," and that the metal necessarily extended somewhat above the die before being struck by the hammer, plaintiff's evidence tended very strongly to show that the failure to properly place the billet in position caused the upper part of the metal thereof to lap over the die and be sheared off by the latter when the hammer descended. It appears that in driving such a billet into the die sparks would invariably fly off, which were harmless, but that it was not customary for pieces of the metal to be sheared off and to fly about; and that upon this occasion not only was plaintiff injured by a piece of such flying metal, but that the hammersmith himself was slightly injured in a like manner.

It is strongly urged that the defendant's demurrer to the evidence should have been sustained, but we are not so persuaded. The argument in support of the demurrer appears to disregard the fact that our courts adhere to the doctrine, not universally recognized, that it is the personal duty of the master to direct and control the work, and that if one servant is given power and authority to direct and control other servants, in the performance of some branch of the master's work, the latter is liable for negligence on the part of such superior servant in the exercise of the...