Knott v. Missouri Boiler & Sheet Iron Works

• Decision Date: 11 June 1923
• Docket Number: No. 23488.,23488.
• Citation: 299 Mo. 613,253 S.W. 749
• Court: Missouri Supreme Court
• Parties: KNOTT v. MISSOURI BOILER & SHEET IRON WORKS.

253 S.W. 749

299 Mo. 613

KNOTT v. MISSOURI BOILER & SHEET IRON WORKS.

No. 23488.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Motion for Rehearing Overruled July 14, 1923.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by William Knott against the Missouri Boiler & Sheet Iron Works, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Samuel M. Rinaker, of Chicago, Ill., and Charles E. Morrow, of St. Louis, for appellant.

William L. Igoe, Vance J. Higgs, and Robert J. Keefe, all of St. Louis, for respondent.

Statement.

BAILEY, C.

On November 19, 1920, plaintiff commenced this action in the circuit court of the city of St. Louis, Mo., to recover damages from defendant, a Missouri corporation, alleged to have been sustained by him while in the service of said company, under its foreman, on the date hereafter mentioned. The petition alleges that on March 16, 1920, plaintiff was working under defendant's foreman in repairing a certain locomotive, which said work consisted, in part, of riveting together pieces of iron and steel with a pneumatic hammer or air gun, furnished by defendant and being used in said work; that said hammer or air gun consisted of a metal cylinder, 18 inches in length and in which a solid piece of steel, about 10 inches long, known as a, "plunger," moved forward and backward, under the force of compressed air; that said cylinder or gun was open at ane end; that there was attached to the other end a hose or rubber tube, through which compressed air was forced into said gun; that the passage of air was controlled by an intake valve, operated by a trigger on the handle of said gun; that other valves and springs were so arranged that, when the muzzle or open end of said gun was held against a rivet and pressure applied to said trigger, air under high pressure would be admitted into said tube, driving the plunger with great speed and force against a metal die, whereby the latter was caused to strike the rivet with great force, and to continue to so operate with great velocity while pressure was kept on said trigger, but unless the muzzle or open end of said gun was held against a rivet, or other object presenting strong resistance to the passage of the die and plunger, the operation of the intake valve and admission of air into the cylinder would cause said die and plunger to be projected and shot from said gun with terrific force and speed.

The petition then alleges that at the times named, the pneumatic hammer or air gun aforesaid was dangerous, defective, and unsafe in the following particulars, to wit: That the muzzle or open end of said gun was not provided with a guard to prevent the die and plunger from being ejected therefrom, although an effective and sufficient guard for this purpose could easily have been provided without impairing the effectiveness of said tool for any purpose or interfering with its use as a riveter; that the aforesaid trigger was exposed, unguarded, and unprotected, although a slight pressure or touch would suffice to operate it and to open the said intake valve, and althought an effective guard could easily have been provided for said trigger which would have prevented its operation through accident or inadvertence without thereby lessening the effectiveness of said gun for any purpose; that the valves, and particularly the intake valve, of said gun, were defective and disordered and could not be entirely closed when said gun was not in use; and that by reason thereof, air was constantly leaking through said valves and being admitted into said cylinder without the application of any pressure to the trigger of said gun, in sufficient volume and with sufficient force to cause the operation and ejection from said gun of the aforesaid die and plunger.

Plaintiff further avers that the defendant knew, or by the exercise of ordinary care could have known, of said defects and of the dangerous, unguarded, and unsafe condition of said tool as aforesaid, and could by the exercise of ordinary care have remedied the same, but that wholly neglecting and disregarding its duty to the plaintiff in that behalf, it carelessly and negligently furnished and maintained the said tool in its dangerous, defective, and unguarded condition as aforesaid, at the place where plaintiff was working, and carelessly and negligently caused and allowed it to be used in said work.

Plaintiff further states that while he was engaged in the aforesaid work under the supervision of defendant's foreman, he was ordered and directed by said foreman to take hold of said pneumatic hammer or air gun, and that in compliance with said order he did take said gun in his hands; that thereupon and without any fault or act on his part, and because of the dangerous and defective and unguarded condition of said gun as hereinbefore described, the plunger thereof projected and shot from said gun with great force and velocity and struck plaintiff in the face and left eye, whereby he was injured as follows, to wit: That his left eye was entirely destroyed; that the muscles and ligaments around said left eye were cut and bruised; that he sustained severe bruises and contusions about his face and a fracture of one of the bones thereof; that the sight of his right eye and his hearing were and are greatly impaired; that he received a severe shock to his nerves, and his nervous system, and that he has suffered, and still does suffer, great and serious pain by reason of his said injuries. He claimed to have been damaged, by reason of the negligence aforesaid, in the sum of $25,000, and prayed judgment accordingly.

The answer upon which the case was tried contained: (1) A general denial; (2) a plea of contributory negligence; (3) that plaintiff's injuries were caused by the negligence of a fellow servant; and (4) a plea of assumption of risk.

The reply was a general denial.

The case was tried before a jury on April 26, 1921, and a verdict returned in favor of plaintiff for $17,500 and judgment rendered accordingly.

The plaintiff's evidence tended to prove that on the 16th day of March, 1920, he was in the employ of the defendant, working under Mr. Adelman, who had authority to direct him in his work. The two were engaged in working on the flues of a locomotive engine at Lemp Brewery in St. Louis. The place of work was about 30 blocks from defendant's plant and shop. Mr. Adelman and plaintiff had been working on this job about a week at the time plaintiff was injured. Mr. Adelman, who was not in the employ of defendant at the time of the trial, testified that he had been instructed by the defendant's superintendent to get the tools he needed in the work, and did not have, from Lemp's Brewery. In doing the work they used a pneumatic air hammer, spoken of in the evidence as an air gun. This device was cylindrical in form, had a handhold at one end, was hollow, and in its barrel was a valve which worked a piston or plunger back and forth, and this plunger struck a die placed in the end of the barrel. The die was held in place so it would not fall out by means of a spring. When the die was placed against an object and the device was in operation, the plunger working against the die caused it to hammer the object it was held against. The power was compressed air and was communicated to the hammer by means of a hose. In the handhold or handle was a device, worked with the finger, called a "trigger," which opened and closed a valve, thus communicating air pressure on the plunger or shutting it off, as the operator desired. By pressing the trigger, the valve was opened and the hammer would operate, and when the pressure on the trigger was taken off, the valve would close and the hammer would cease to operate. The air pressure was from 115 to 120 pounds, and the force of the stroke of the hammer was measured by the amount of the pressure of the air. Air hammers had been furnished by the defendant, which had been taken to the place of work from defendant's shop; but they were too small, and on the day plaintiff was injured, and a short while before his injury, Mr. Adelman sent plaintiff to defendant's shop for another hammer, and the plaintiff procured another hammer at defendant's shop and returned with it to the place of work, but said hammer was not used. In the meantime, Mr. Adelman had gotten a hammer from Lemp's which he was using at the time plaintiff was injured. Mr. Adelman testified that just before the plaintiff was injured, he noticed that the hammer he was using, which had been procured by him from Lemp's, was leaking air; that sometimes particles of dirt got into the trigger valve which would prevent it from completely closing, and that air would be permitted to escape into the hammer, and that this might cause the hammer to operate and to shoot the die out of the end of the barrel thereof; that the spring, which held the die in the hammer, would not be sufficient to keep the die from being projected from out of the hammer when it was in operation, unless the die was against something. The evidence also tended to show that if the hammer was leaking air and was held in a perpendicular position,.it was liable to shoot the die out of the hammer without the trigger valve being operated.

The plaintiff and Mr. Adelman were working in the fire box of a locomotive on the flues of the boiler thereof. A device called a "prosser," which was a piece of metal, cylindrical In form, and the size of the flues, was driven into the flues by the use of the hammer to expand the flues. After it was driven in by means of the air hammer, it was taken out by tapping it with an ordinary hammer and working it loose so that it would come out. The air hammer in question had only been used to drive the prosser into three flues, and Mr. Adelman, after driving the prosser into the third flue, handed the air hammer to plaintiff to hold while Adelman worked the prosser out of the flue....