Mall v. Fulton Iron Works Co.

• Decision Date: 21 June 1927
• Docket Number: No. 19802.,19802.
• Citation: 296 S.W. 851
• Parties: MALL v. FULTON IRON WORKS CO.
• Court: Missouri Court of Appeals

296 S.W. 851

MALL v. FULTON IRON WORKS CO.

No. 19802.

St. Louis Court of Appeals. Missouri.

June 21, 1927.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

"Not to be officially published."

Action by Warren D. Hall against the Fulton Iron Works Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Joseph C. McAtee, of Clayton, for appellant.

A. F. Gerritzen, Mark D. Eagleton, and James A. Waechter, all of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries, sustained by plaintiff while in the employ of defendant on May 19, 1925, when his right foot was burned by molten metal, caused to splash from a ladle into which it was being poured. The verdict, signed by 10 jurors, was for plaintiff, in the sum of $1,970, and from the judgment rendered thereon defendant has appealed.

The negligence pleaded and submitted to the jury was the alleged failure of defendant to exercise ordinary care (1) to furnish plaintiff a reasonably safe place in which to work, in that, while the metal was being poured from a large ladle into a small one, it was likely to be caused to fly, and to strike and injure plaintiff; and (2) to adopt and use a reasonably safe method of pouring the metal, in that, while so doing, no provision was made for holding back the "scab" or incrustation thereon, and preventing it from falling into the small ladle, without which precaution the method used was dangerous and not reasonably safe, all of which defendant knew, or by the exercise of ordinary care could have known.

The answer was a general denial, coupled with a plea of assumption of risk. The reply was in conventional form.

Plaintiff was employed as a molder helper, and had been in defendant's services for three weeks when his injury was received. In the particular plant in which he was working, it was the practice for molten metal to be poured out of a cupola into a large container or ladle having a capacity of 20,000 pounds. The large ladle was then conveyed by a crane as near as possible to the point where the metal was to be placed into the molds. At such point the metal was emptied from the large ladle, into the smaller ones, holding 150 pounds each, and held by two men. During such process the top of the large ladle would be 6 or 7 feet above the ground, and the men carrying the small ladle would grasp it by a bar extending across the top and beyond the sides, and raise it to the height of their shoulder, whereupon the large ladle would be caused to tilt by means of a mechanical device operated by another employee.

All witnesses agreed that, as the molten metal cooled or chilled, a scum from the impurities in the iron formed over the top. By Plaintiff's evidence this scum was described as a "scab," or slate formation, which became hard. Plaintiff himself testified that it was customary for an employee, termed a "skimmer," to follow the crane, and by using a paddle hold back the "scab" while the metal was being poured from the large ladle into the small one. Defendant's evidence, to the contrary, was that the "skimmer" performed such duty only when the metal was being emptied from the small ladles into the molds.

At 2 o'clock in the afternoon of the day in question (though the usual time for filling the small ladles was 3 o'clock), two men, Richt and Donaldson, carried one of the small ladles to the large ladle to be filled. Plaintiff, at the time, was standing 20 feet from the large ladle, with his back turned toward it, and did not know, nor had he been informed, that the metal was to be poured. It was undisputed that it was no part of plaintiff's duties to assist or take part in this character of work.

Richt, called as a witness for plaintiff, testified that when the small ladle, which he and Donaldson were holding, became half filled, a portion of the "scab" fell from the large ladle into the small one, causing the metal to splash upon him and burn him, whereupon he released his hold, as did Donaldson, also, momentarily thereafter. When the ladle fell, part of its contents poured out and ran against plaintiff's foot, producing the injury on account of which this action was brought.

Defendant's witnesses admitted that the small ladle was dropped, and that plaintiff was burned in the manner narrated by him, but denied that any "scab" or scum came out of the large ladle, although it was disclosed by such witnesses that the large ladle had been filled for 30 minutes when the pouring was attempted, and that a considerable "scab" or scum had formed during that period of time, which had been observed by the foreman, who was present at the scene of activities. The operator of the large ladle did testify, however, that sometimes the "scab" did fall. All the witnesses agreed that no "skimmer" was present, at the time plaintiff received his injury, to restrain the "scab" from falling.

Defendant does not question the sufficiency of the evidence to make a case for the jury, but contents itself with criticising the giving and refusing of instructions, and the action of the court on several matters pertaining to trial practice. The first assignment of error is directed at the court's refund to sustain defendant's motion to discharge the jury, made at the conclusion of the cross-examination of Dr. Reilly, a witness for defendant. Dr. Reilly had been required to answer, over objection, that he had been paid for his professional services rendered to plaintiff by T. H. Mastin & Co., an insurance company. After the witness had left the stand, and both plaintiff and defendant had rested, counsel for defendant moved that the jury be discharged, by reason of the fact that such testimony had been elicited, asserting that it had been brought out to prejudice the defendant before the jury, and inject a third party into the case.

It would seem that, if learned counsel had really feared the effect of such statement upon the minds of the jurors, he should have moved the jury's discharge as soon as the evidence complained of had been given. But, aside from this, we regard the ruling of the court as having been manifestly correct. Dr. Reilly had given testimony contradictory in many respects to that of plaintiff's medical expert, and calculated to minimize the extent of plaintiff's injuries, and thus materially reduce the amount of damages that he might recover. We do not pretend to say which witness the jury should have believed, but, in the proper discharge of their duty of arriving at a finding of fact from such conflicting evidence, it was only fair and just that the jury should have been informed whom Dr. Reilly represented, and what his real interest in the litigation was. Snyder v. Wagner Electric Mfg. Co., 284 Mo. 285, 223 S. W. 911; Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 173, 279 S. W. 89; Zein v. Pickel Stone Co. (Mo. App.) 273 S. W. 165; Miller v. Walsh Fire Clay Products Co. (Mo. App.) 282 S. W. 141.

It is next earnestly contended that the court erred in giving instruction No. 1 for plaintiff. This instruction follows:

"The court instructs the jury that, if you find and believe from the evidence that on or about May 19, 1925, plaintiff was in the employ of defendant, and was engaged in his duties in defendant's foundry in St. Louis county, Mo., and that at a place near where plaintiff was working the defendant was engaged in pouring metal from a large ladle to a small ladle, and that some of said metal, while being poured, splashed to where plaintiff was working, and burned and injured him, and if you further find from the evidence that in pouring said metal the defendant made no provision for holding back the incrustation known as scab (if you find that there was such scab on the metal), and that said metal was being poured without holding hack the scab, and without preventing it from falling into the small ladle, and if you further find that said method of pouring the metal was dangerous, and not reasonably safe, and was likely to cause persons thereabout or plaintiff...