Maier v. American Car & Foundry Co.

• Decision Date: 07 June 1927
• Docket Number: No. 19788.,19788.
• Citation: 296 S.W. 212
• Parties: MAIER v. AMERICAN CAR & FOUNDRY CO.
• Court: Missouri Court of Appeals

296 S.W. 212

MAIER v. AMERICAN CAR & FOUNDRY CO.

No. 19788.

St. Louis Court of Appeals. Missouri.

June 7, 1927.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action by George Maier against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis, for appellant.

Fred Berthold, of St. Louis, for respondent.

DAUES, P. J.

This is an action for personal injuries sustained by plaintiff while in the employ of the defendant while working at a wood-boring machine. The trial resulted in a verdict and judgment for plaintiff for $2,000, and defendant appeals.

The petition alleges seven grounds of negligence, but the case went to the jury only upon one of them, which charges negligence of defendant in failing to guard the machine as required by section 6786, Revised Statutes Missouri 1919.

The answer is a general denial, with a plea of contributory negligence. The reply is a general denial.

There are two assignments of error relied upon by defendant, appellant here: First, the refusal to instruct the jury peremptorily to find for defendant; and, second, that the verdict is excessive.

The argument under the first assignment is divided into three parts. It is said, first, that it conclusively appears that the machine was not such as is required to be guarded under the statute, in that it was not dangerous to employees in the performance of their ordinary duties so long as they exercised ordinary care in operating same; second, that the undisputed evidence shows that the machine could not be guarded without reducing its efficiency to the zero point; and, third, that the evidence shows that respondent negligently and willfully held his hand in such position under the piece of material through which he was boring the hole that when the bit passed through the board it would necessarily strike his hand, and that such constituted gross contributory negligence which barred his right to recover as a matter of law.

We conclude that the case was properly submitted to the jury and that the reasons assigned above do not find support in the record. We will recite the evidence which will demonstrate, we think, the correctness of our view.

The allegation of the petition is that defendant carelessly and negligently failed to safely and securely guard the boring machine when defendant knew, or by the exercise of ordinary care should have known, that the machine could have been safely and securely guarded without materially interfering with the operation of same. From the testimony adduced on behalf of the plaintiff, and from exhibits, it would appear that the machine at which plaintiff was hurt was a wood-boring machine, so equipped that four augers could be placed in it at the same time. The board would be laid on the table and the boring would be done from the rear, horizontally, towards the operator. There were screens placed above the bit when not pushed forward into the board, but as the bit was moved forward and protruded into or beyond the board it would be exposed beyond the screen above. There were levers for controlling the backward and forward movement of the bits. Plaintiff testified that the bit or auger which injured him was at the extreme left of the machine; that he held his right hand at the lower right-hand corner of the board through which he was boring holes at the time; and that with his left hand he operated the lever which served to pull the bit forward. The board that he was then boring was about 2 feet long, 12 inches wide, and 1 1/8 inches thick, and he was boring a hole in the board about 8 inches from the right-hand side of the board and a half inch from the bottom. He testified that the bit became choked in the board and caused same to lurch backward, and at the same time caused plaintiff's hand to be thrown against the revolving bit, injuring him. Plaintiff also says that defendant's foreman stood over plaintiff while the bit was being placed.

With the pictures as exhibits before us, it is not difficult to understand the testimony with reference to the mechanism and condition of the machinery, yet it is quite difficult to set it out descriptively. Suffice to say, there is evidence to show that there was no bracket on the left of the machine to rest the board against, and on the right-hand side the board reached about half way to the first bracket. The iron backing of the machine was from one-fourth to three-eighth inches higher than the board placed upon the iron rollers, and at the time plaintiff was hurt the board tipped back to the left, causing his hand to get into the revolving auger. Plaintiff says he was in the act of pressing the board toward the machine when it tilted backward, causing his hand to get into the bit. Plaintiff further said that he did not throw his hand immediately in front of the revolving bit, but that he held his hand in such a way that it was about 1½ to G inches to the right of the hole that was being bored, and that when the bit came through the board his hand was knocked backward into the revolving bit. So the...