Knott v. Missouri Boiler & Sheet Iron Works
| Decision Date | 14 July 1923 |
| Parties | WILLIAM KNOTT v. MISSOURI BOILER & SHEET IRON WORKS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor Judge.
Affirmed.
Samuel M. Rinaker and Charles E. Morrow for appellant.
(1) There was no evidence upon which to base plaintiff's instruction numbered 2, or on which to submit to the jury the assignment of negligence upon which it is based. Brands v. Car Co., 213 Mo. 698, 707; Chrismer v. Bell Tel Co., 194 Mo. 189, 208; Coin v. Lounge Co., 222 Mo. 488, 505; Williams v. Ice & Cold Storage Co., 214 S.W. 389; Van Bibber v. Swift & Co., 228 S.W 69; Spindler v. American Exp. Co., 232 S.W. 690. (2) Said instruction, even if there was evidence upon which to base it, is erroneous. (a) It requires the defendant as a matter of law to equip the hammer with a safety device as the only means of making it reasonably safe, and declares as a matter of law that the hammer was not reasonably safe from any cause and was not equipped with the particular device, and the defendant knew it, and plaintiff was injured because of its absence, plaintiff was entitled to recover. Authorities supra. (b) It does not require the jury to find that the safety device was in common and general use, or that the defendant in the exercise of ordinary care would have provided it, but makes the defendant liable regardless of whether the same was in common and general use, and regardless of whether defendant failed to exercise ordinary care in not adopting it. Thompson v. Railroad, 270 Mo. 87, 98; Brands v. Car Co., 213 Mo. 698, 707; Chrismer v. Bell Tel. Co., 194 Mo. 189, 208; Coin v. Lounge Co., 222 Mo. 488, 505. (c) It requires the defendant to adopt the particular safety device if the hammer in question was not reasonably safe at the time plaintiff was injured, because the valve thereof was leaking air, notwithstanding the hammer was reasonably safe, if there had been nothing wrong with the valve. (d) It wholly ignores the rule that the defendant was only required to furnish such appliances as are ordinarily used in such business by prudent men.
William L. Igoe, Vance J. Higgs and Robert J. Keefe for respondent.
(1) The assignment of negligence in failing to guard the air-gun is supported by substantial evidence, and properly was submitted to the jury. (a) Since the danger of the plunger being shot out was inherent and attendant upon the ordinary use of the gun, failure to adopt a readily obtainable guard of proven practicability sufficiently supports the finding that the appliance was not reasonably safe. Kuhn v. Lusk, 219 S.W. 638; Curtis v. McNair, 173 Mo. 270; Littig v. Urbauer Atwood Heating Co., 237 S.W. 779; Philbin v. Columbia & P. S. R. Co., 56 Wash. 610. (b) There was substantial evidence of general usage in guarding the gun. The conflict in the evidence upon this point made a question for the jury. This question was correctly submitted. Trebbe v. American Steel Foundries, 185 S.W. 179; Thompson v. Railroad Co., 270 Mo. 87; 3 Labatt on Master and Servant (2 Ed.) sec. 939, p. 2528. (c) Evidence of usage as to guarding the muzzle of the gun, while proper in evidence, was not a necessary part of plaintiff's case, since the negligence charged was not predicated merely on failure to adopt a safer appliance customarily used, but upon the fact that without a guard the gun was inherently unsafe and its ordinary use attended with great and unnecessary danger. Trebbe v. American Steel Foundries, 185 S.W. 179; Thompson v. Railroad Co., 270 Mo. 87; Kuhn v. Lusk, 219 S.W. 638; Brands v. Car Co., 213 Mo. 698. (d) Common use of an unguarded machine is not, as a matter of law, conclusive of its reasonable safety where failure to guard subjects the servant to unnecessary danger inherent in the machine and attending its ordinary operation. Johnson v. Waverly Brick & Coal Co., 276 Mo. 42; Reichla v. Gruensfelder, 52 Mo.App. 43; Kuhn v. Lusk, 219 S.W. 638; 3 Labatt on Master and Servant (2 Ed.) sec. 940, p. 2529; Wabash Ry. Co. v. McDaniels, 107 U.S. 454, 27 L.Ed. 605; Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 470, 47 L.Ed. 905. (2) Instruction 2 correctly submitted the assignment of defendant's negligence in failing to provide a guard. It was not necessary to require a finding that a guard was in general use. The instruction did not exclude that matter, and Instruction 6-A directed that it be considered. Trebbe v. American Steel Foundries, 185 S.W. 179; Thompson v. Railroad Co., 270 Mo. 87.
On November 19, 1920, plaintiff commenced this action in the Circuit Court of the City of St. Louis, Missouri, 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, eighteen inches in length, and in which a solid piece of steel, about ten inches long, known as a plunger, moved forward and backward, under the force of compressed air; that said cylinder or gun was open at one 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 in-take 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 in-take valve and the 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 of 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 in-take valve, and although 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 in-take 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 muscle 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...
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