McElhiney v. Friedman-Shelby Shoe Company

• Decision Date: 06 June 1911
• Citation: 138 S.W. 60,158 Mo.App. 318
• Parties: A. R. McELHINEY, Respondent, v. FRIEDMAN-SHELBY SHOE COMPANY, Appellant
• Court: Missouri Court of Appeals

138 S.W. 60

158 Mo.App. 318

A. R. McELHINEY, Respondent, v. FRIEDMAN-SHELBY SHOE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 6, 1911

Submitted on Briefs May 9, 1911

Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.

Judgment affirmed.

Watts Dines, Gentry & Lee for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action. This was not raised in the lower court, but it was not necessary, since the point can be made for the first time in the appellate court. Cartwright v Telephone Co., 205 Mo. 126; Davis v. Jacksonville etc., Line, 126 Mo. 69; Ball v. Neosho, 109 Mo.App. 683. (2) The court erred in overruling the demurrer to the evidence. The doctrine of res ipsa loquitur has no application in a suit by a servant against his master. Beebe, Admr., v. Transit Co., 206 Mo. 419; Railroad v. Fulgham, 181 F. 91; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Hester v. Packing Co., 84 Mo.App. 41. Where an injury might have been caused by one of two or more causes, for some of which the master would have been liable, and for some of which he would not have been liable, the demurrer to the evidence should have been sustaind, unless the plaintiff's evidence clearly reveals the fact that the injury was the result of a cause for which the master would be liable. Goransson v. Mfg. Co. , 186 Mo. 300; Epperson v. Telegraph Co., 155 Mo. 346; Wood on Master and Servant, sec. 382; Cothson v. Packing Co., 98 Mo.App. 343. (3) Plaintiff's instruction No. 1 is erroneous in three particulars: First, it requires absolutely that the master should keep the machine in a reasonably safe condition. Hach v. Railroad, 117 Mo.App. 11; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Wojtelak v. Coal Co., 188 Mo. 260; McDonald v. Oceanic Steam Co., 143 F. 480; Railroad v. Carr, 153 F. 106; Cooperage Co. v. Headrick, 159 F. 680; Armour & Co. v. Russell, 154 F. 614; Hoch v. Railroad, 117 Mo.App. 11. The second objection is that it permits the jury to find that the machine was defective and out of repair when there was no evidence offered that the machine was defective. Railroad v. Fulgham, 181 F. 91. The third objection is that it permits a recovery simply because the machine failed to stop when properly treadled. Even if the facts were proven to exist and found to exist, the instruction should have embodied all the necessary elements. Fleishman v. Polar Wave I. & F. Co., 148 Mo.App. 117. A causal connection between negligence and injury must be shown. Harper v. Railroad, 187 Mo. 575.

J. T. Baker and Fry & Rodgers for respondent.

(1) The petition is good, after verdict and judgment. Bank v. Assurance Co., 106 Mo.App. 124; Oglesby v. Railroad, 150 Mo. 155; Young v. S. H. & H. I. Co., 103 Mo. 327; Darby v. Cabanne, 1 Mo.App. 127; Cobb v. Lindell Ry. Co., 149 Mo. 143; Robinson v. Life Insurance Co., 105 Mo.App. 571; Butts v. Long, 94 Mo.App. 696. (2) There was no error in overruling the demurrer to evidence. The doctrine of res ipsa loquitur applies to the facts of this case; and there was much proof of defendant's negligence. Oborn v. Nelson, 141 Mo.App. 428; Tateman v. Railroad, 96 Mo.App. 453; Blanton v. Dodd, 109 Mo. 74; Scheurer v. Rubber Co., 227 Mo. 366; Trent v. Printing Co., 141 Mo.App. 437. (3) General instructions with the beginning, the same as complained of in this case, were approved in the cases of: Gorham v. Railroad, 113 Mo. 409; Houts v. Transit Co., 108 Mo.App. 629; Kelly v. Stewart, 93 Mo.App. 53. (4) The proof was very clear and cogent showing the machine was defective and out of repair. Commission Co. v. Bank, 130 Mo.App. 467; Lamb v. Railroad, 147 Mo. 185.

REYNOLDS, P. J. Nortoni and Caulfield, JJ., concur.

OPINION

REYNOLDS, P. J.

This is an action for damages for personal injuries which plaintiff claims he sustained while working in the employ of defendant at its factory in Mexico, Missouri. The machine he was operating is what is known as a "Hercules Leveling Machine," a very lengthy and accurate description of which is set out in the petition and a photographic representation is in the abstract. The machine is used in the manufacture of shoes. We will give the description of the machine and its operation hereafter. It is averred that it was out of repair and in such a dangerous and defective condition that the plaintiff in operating it, lost the thumb of one of his hands, suffered great pain, etc. It is also alleged that defendant had actual or constructive notice and knowledge of the defective and dangerous condition of the machine, and that it failed to properly act, in time to have remedied the defect and so have avoided injury to plaintiff, who, it is alleged, was ignorant of the defective and dangerous condition of the machine.

The answer was a general denial. At a trial before the court and a jury there was a verdict for plaintiff for one thousand dollars. From this defendant, interposing its motion for a new trial, which was overruled, has duly perfected its appeal to this court.

There was testimony tending to show that plaintiff, who was 22 years old, had been in the employ of defendant at this work for about 9 months prior to the time he received his injury. He had worked there something like 8 months of that time on another machine of somewhat different construction than the "Hercules" and had worked on the "Hercules" about a month. There was testimony also tending to prove that a screw which was attached to the machine and was used in the regulation of it had frequently become loose and that when this occurred, as well as when oil had accumulated on the runner over which the last moved, this "kicking back" of the last and form would occur, and that the attention of defendant's foreman had been called to the fact that the machine was defective and did not move properly some time before the accident happened and he was aware of the liability of the last and form to "kick back," but that he told plaintiff it was all right for him to keep at work with it, that he would see to having the defect remedied.

At the instance of plaintiff the court gave two instructions. The first is as follows:

"The court instructs the jury that it was the duty of the defendant to keep its leveling machines in its factory at Mexico, in a reasonably safe condition for its employees who worked at such machines.

If, therefore, the jury believe from the evidence in the case that at the time plaintiff was injured he was in the employ of the defendant as an operator of one of its leveling machines, in defendant's factory at Mexico, and that it was his duty to put shoes on an iron last and put said machine in motion by pressing a treadle with his foot, and that when said shoe was sufficiently pressed between said iron lasts and the iron form above it, he was to press another treadle with his foot and said iron last should stop when it had finished its outward stroke and that while plaintiff was working at said leveling machine, on or about the 15th day of September, 1909, said machine was, by reason of the negligence of defendant, if you believe from the evidence that defendant was negligent, so defective and out of repair that at times said iron last and the form above it on the right hand side of said machine, when put in motion by pressing a treadle, would not stop when said machine was properly treadled to stop them, but would continue their motion, and that defendant or its foreman in charge of its leveling machines and those operating them, knew or by the exercise of ordinary care might have known of the defective condition of said machine, if you believe from the evidence it was defective and dangerous, in time to have repaired said machine and thereby avoided plaintiff's injury; and if you further believe that plaintiff put a shoe on the iron last on the right hand side of said machine and put said last and the iron form above it in motion by pressing a treadle on said machine, and that when said shoe was sufficiently pressed that plaintiff again pressed a treadle in the proper way to stop said last so he could take said shoe off of it, and that when said last came to the position at which it usually stopped when said machine was treadled for the purpose of stopping said shoe in the usual way and that said last failed to stop, but continued its motion and full backward stroke, and that by reason thereof plaintiff's thumb was caught between said shoe and the iron form above it and was thereby mashed, crushed or injured, then your verdict must be for the plaintiff."

The second instruction was as to the measure of damages and no objection is made to it.

At the instance of defendant the court gave eight instructions. The first was to the effect that if the jury found that the machine on which plaintiff was injured was in a defective condition and that fact was known to defendant prior to plaintiff's injury; that if they further found that for a day or two prior to his injury plaintiff himself knew that the machine would cause a shoe placed on it to jump back and would not stop where it should stop when he treadled it, and knew it would jump back so far that the shoe could not be removed from it and if they found that if plaintiff knew or by the exercise of ordinary care would have known that on account of that action of the machine it was not reasonably safe for him to place his thumb over the shoe which was in it and try to remove it while the machine was in motion, and notwithstanding these facts plaintiff placed his thumb over a shoe and attempted to remove it while the machine was in motion and was thereby injured, and if they found that the danger of so placing his thumb under the circumstances was so apparent that a reasonably prudent person of plaintiff's age...