Ludwig v. H. D. Williams Cooperage Co.

• Decision Date: 04 April 1911
• Citation: 156 Mo. App. 117,136 S.W. 749
• Parties: LUDWIG v. H. D. WILLIAMS COOPERAGE CO.
• Court: Missouri Court of Appeals

136 S.W. 749

156 Mo. App. 117

LUDWIG v. H. D. WILLIAMS COOPERAGE CO.

St. Louis Court of Appeals. Missouri.

April 4, 1911.

Rehearing Denied May 2, 1911.

1. MASTER AND SERVANT (§§ 101, 102)—APPLIANCES—DUTY OF MASTER.

It is the master's duty to use reasonable care to furnish and maintain appliances reasonably safe for the purpose for which they were intended.

2. MASTER AND SERVANT (§§ 101, 102)—APPLIANCES—DUTY OF MASTER.

Where a master adopted a guard rail for a planing machine, it was his duty to use reasonable care to keep it reasonably safe for the purpose for which it was intended; that such machines were not ordinarily equipped with guard rails being immaterial.

3. MASTER AND SERVANT (§ 226)—ASSUMPTION OF RISK—DEFECTIVE APPLIANCES.

A servant does not assume the risk of the master's negligence, except where the injury occurs from the manner in which the servant uses a defective appliance when a safe way to use it appears.

4. MASTER AND SERVANT (§ 219)—DANGEROUS APPLIANCES—PLACE FOR WORK — ASSUMPTION OF RISK—CONTRIBUTORY NEGLIGENCE.

Where the instrumentalities with which, or the place where, a servant is required to perform services are so glaringly defective and dangerous that a man of ordinary prudence would not use or occupy them, the master is not responsible for injuries resulting from their use or occupancy, though such defective conditions were caused by his negligence.

5. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE— JURY QUESTION.

In a servant's action for injuries while operating a planing machine, plaintiff's contributory negligence held, under the evidence, for the jury.

6. TRIAL (§ 250)—INSTRUCTIONS—INSTRUCTIONS NOT BASED ON EVIDENCE.

An instruction which, though abstractly correct, is not based on the evidence, or is outside of the issues, is properly refused.

7. TRIAL (§ 191)—INSTRUCTIONS—ASSUMPTION OF FACTS.

In a personal injury action, an instruction that if the jury found that the injury was the direct result of "such defective condition" of a guard rail, etc., was not erroneous as assuming that the guard rail was defective; the preceding part of the instruction having made it a condition to plaintiff's recovery that the jury should believe from the evidence that the guard rail was "out of order," and it being plain that it was such condition of being out of order that was referred to by the words "such defective condition."

8. NEGLIGENCE (§ 85)—PERSONAL INJURIES —CONTRIBUTORY NEGLIGENCE — AGE OF PLAINTIFF.

In an action for injuries to a minor, the jury may consider plaintiff's age in determining whether he was guilty of contributory negligence.

9. APPEAL AND ERROR (§ 882)—ESTOPPEL TO ALLEGE ERROR.

One may not complain that erroneous instructions given at his request conflict with proper instructions.

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

Action by Andrew Ludwig, a minor, by his next friend, Caroline Ludwig, against the H. D. Williams Cooperage Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover damages for personal injuries suffered by plaintiff while in the employ of defendant. Plaintiff had judgment for $500, and the defendant has appealed. The material facts in proof are as follows: Plaintiff, a boy 17 years old, was employed by defendant planing boards on a "rejointer." This was an iron table with a transverse slot through it, in which two knives revolved rapidly. The knives projected a little above the surface of the table. On this table laid across the slot were a gauge and a guard rail. The guard rail was intended to keep the hand from coming in contact with the knives. It was 18 inches long, 5/16 inches thick and was beveled, or sloped off to one side. The space between the gauge and the guard rail was two inches wide. The boards were planed by holding them on their side edges and pushing them along and through this space over the slot in which the knives revolved. Plaintiff had been instructed by the foreman of defendant to run through two boards at a time, and he uniformly did this. Aside from this he had received no other instruction, except to work on this machine and to be careful and not get hurt. Though the space was two inches wide, the combined thickness of the two boards varied from time to time, sometimes being as narrow as ¾ inches and sometimes as thick as 2 inches, sometimes leaving 1¼ inches exposure of the knives between the boards and the guard rail, and sometimes practically none. On the occasion when plaintiff was injured, he was running through two boards of a combined thickness of one inch, leaving a one-inch exposure of the knives between the guard rail and the boards. The defect said to have caused plaintiff's injury related to the manner of fastening the guard rail. It was not securely fastened to the table by bolts or otherwise. There were only two holes bored through the guard rail and table, and nails were loosely dropped down into them, without being clinched, leaving the guard rail loose and wabbling. As the plaintiff was running the boards through on the occasion of his injury, he says there was a jar as from striking a knot, and that his hand slipped or was jarred down on the guard rail, which, instead of stopping the hand, tipped, and allowed the hand to come in contact with the knives. He testified that he thought the jar was caused by a knot, "because it always jarred when there was a knot." Plaintiff's little finger and part of his hand were cut off. Plaintiff had been working for defendant two months, and during that time he worked on the machine by which he was injured. Since he had been there the guard rail had been on the machine, and was fastened in the same way as it was when he was injured. In all the two months he was using it it wabbled. He testified that he knew how the guard rail was fastened, and that it wabbled; that he knew the knives were there revolving rapidly; that he saw the one-inch space between the boards and the guard rail, and that that was plenty of room to get his finger down in; that he knew that, if he got his hand down among the knives, it would get cut. He never spoke to any one about the guard rail being loose. The foreman of defendant, who was over plaintiff and had employed him, testified that he was authorized to hire and discharge the "boys" and had general charge of the shop; that the guard rail had been wabbling all the time while the boy worked there; that he, the foreman, did not fix it because he did not have time; that he was not instructed to fix it; that it was not his business to fix defective machinery.

Defendant offered testimony tending to prove that "there was no guard furnished with these machines when they came from the factory. They were not equipped with guards. The wooden guard was put on there by the Columbia Cooperage Company, the predecessor of the H. D. Williams Cooperage Company, and, when the H. D. Williams Cooperage Company bought the Columbia Cooperage Company out, the guard rail was on the machine," and that "the machine which is used there is in general use by cooperage companies." At the close of the evidence on behalf of plaintiff, and again at the close of all the evidence, the defendant asked the court to give to the jury an instruction in the nature of a demurrer to the evidence, which instruction the court refused to give, and the defendant duly excepted. Thereupon the court at the request of the plaintiff gave to the jury the following instructions:

"(1) The court instructs the jury that if they believe from the evidence that the guard rail of the machine in question was out of order, on the occasion when plaintiff was injured, as stated in the evidence, if they find he was injured, and that the defendant knew, or by the exercise of ordinary care would have known, that said guard rail was out of order a sufficient length of time before such injuries as that by the exercise of reasonable care it could have repaired and...