Kelly v. Columbia Box Co.

• Decision Date: 18 December 1922
• Docket Number: No. 23109.,23109.
• Citation: 248 S.W. 589
• Parties: KELLY v. COLUMBIA BOX CO.
• Court: Missouri Supreme Court

248 S.W. 589

KELLY v. COLUMBIA BOX CO.

No. 23109.

Supreme Court of Missouri, Division No. 1.

December 18, 1922.

Rehearing Denied March 5, 1923.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Action by John F. Kelly against the Columbia Box Company. Verdict for plaintiff was set aside as grossly inadequate, and defendant appeals. Affirmed.

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

ForisteI & Eagleton, of St. Louis, for respondent.

SMALL, C. I.

Appeal from the circuit court of the city of St. Louis. Plaintiff, on March 16, 1920, was an employee of defendant in its box factory in St. Louis, and was injured while working at a saw table, by his left hand coming in contact with an unguarded saw on said table. In his petition he claimed damages for loss of time and medical bills, as well as for his injury, and prayed judgment for $25,000. The answer admitted there was no guard on the machine which rendered it unsafe and dangerous, but alleged that the plaintiff himself had removed the guard, and thereby and also otherwise been guilty of contributory negligence. The reply was a general denial.

The plaintiff's testimony; corroborated by two fellow workmen, tended to show that he did not remove the guard, but it was off when he went to work, without his fault. The only witness for defendant, the foreman, testified that the guard had been on the morning that plaintiff was hurt, and that he did not take it off, and that after plaintiff was hurt plaintiff said he had removed the guard because it was awkward to work with. Plaintiff denied this conversation with the foreman, and his two fellow workmen testified that the foreman himself, shortly prior to the accident, removed the guard and worked on the machine without any guard. That plaintiff was not there at that time. As to his injuries plaintiff testified:,

"I lost two fingers. My left hand was thrown into the saw blade. Dr. Caulfield amputated the index and middle fingers of my left hand. On other parts of the hand and fingers there were cuts and bruises, middle finger was cut. The cut went all down to the leaders."

After Dr. Caulfield amputated his fingers he was treated by Dr. Shaw, from March 17 to June 8, 1920. The first couple of weeks he went twice a day to Dr. Shaw's office, after that once a day up to the 8th of June. "There was an open sore on my hand." Doctor had to burn the proud flesh off. Hand and fingers were all right before accident. Cannot use hand for anything now. First resumed work after accident on October 25, 1921, at Omaha, in a bakery, and worked there ever since. When worked at defendant's box factory average weekly wage was $22.50 to $25; $25 included overtime. Was working over time when injured. The little and ring fingers are each partly stiff. "Still suffer pain in my hand it aches in bad weather; feel pain where the fingers used to be."

Cross-examination: "Was out of work from the 16th of March to October 25th. Wages now $27 a week."

Redirect: Before he left St. Louis he tried to get work in a box factory, but they would not pay him but 30 cents an hour as a laborer. They told him he could not work on a table where the wages were 40 cents an hour, because he could not handle lumber; he being crippled. He then moved to Council Bluffs, Iowa.

Dr. Shaw testified for plaintiff:

That when he first treated plaintiff the index and middle fingers of the left hand had been amputated at the joint nearest the end. The end was very much swollen, and the thumb was cut pretty badly. All fingers were cut except the little finger. There was very much infection, in other words, blood poisoning, and blood poisoning is exceptionally painful and very dangerous. Continued to treat his hand until early in June, 1920. For three or four weeks he called twice a day. "When this infection is very bad, we have to, open up that and put drains through there and dress that twice a day and thereafter every day. I believe it was in May, early part of May, and then every second day. When I discharged him in June, I had done everything I for that hand. Every part of the body is influenced by blood poisoning. In my opinion he has permanently lost 75 per cent. to 80 per cent. of the functional use of his hand. $225 would be a reasonable charge for my medical services to the plaintiff. My bill has not been paid."

Cross-examination:

"He had not been my patient before, but I had attended his wife. My opinion as to his having lost 75 per cent. to 80 per cent. of the functional use of his hand is due to the fact that the index finger is the one that is lost, which is most beneficial of any of the fingers that there are."

No other witnesses testified as to plaintiff's injuries.

The case was submitted to the jury without any instructions for the plaintiff, either on the measure of damages or otherwise. On behalf of defendant, ...