McKinney v. Martin-Holloran-Klaus Laundry Co.
| Decision Date | 08 January 1918 |
| Citation | 200 S.W. 114,198 Mo.App. 386 |
| Parties | JESSIE McKINNEY, Respondent, v. MARTIN-HOLLORAN-KLAUS LAUNDRY COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St Louis.--Hon. J. Hugo Grimm, Judge.
AFFIRMED.
Judgment affirmed.
McGrath & Houlihan and Taylor & Chasnoff for appellant.
(1) The court erred in refusing to give the instructions in the nature of a demurrer to the evidence, offered by appellant at the close of respondent's evidence and at the close of the whole case. From the testimony of respondent it conclusively appears that the machine in question could have been operated in two ways, one safe and one unsafe. Respondent chose to operate it in the unsafe way. This constituted contributory negligence, and she was not entitled to recover. Even granting that the manner of operation adopted by respondent was the only one available, it was so obviously dangerous that its adoption by respondent constituted contributory negligence, and she was not entitled to recover. Sissel v. Railroad, 214 Mo. 515; Moore v. Railway, 146 Mo. 572; Hurst v Railroad, 163 Mo. 309; Montgomery v. Railroad, 109 Mo.App. 88; Smith v. Box Company, 193 Mo. 715; Pohlmann v. American Foundry Co., 123 Mo.App. 219; Slagel v Lumber Company, 138 Mo.App. 432; Hirsch v. Bread Company, 150 Mo.App. 162; Harris v Railroad, 146 Mo.App. 524; affirmed, 250 Mo. 567; Schiller v. Breweries Company, 156 Mo.App. 569; Rogers v. Packing Company, 185 Mo.App. 99. (2) The trial court erred in giving instruction 2 offered by respondent and modified by the court. This instruction authorized a recovery for respondent, on proof of general negligence when specific negligence was pleaded, it assumed the existence of controverted matter, and although purporting to cover the entire case, ignored and excluded elements necessary to respondent's recovery. Cases cited under point 1, supra, Cathart v. Railway Co., 19 Mo.App 113; Flynn v. Bridge Co., 42 Mo.App. 529; Freeman v. Railway Co., 95 Mo.App. 94; Baker v. Independence, 106 Mo.App. 507; Wilks v. Railroad, 159 Mo.App. 711; Bryan v. Lamp Co., 176 Mo.App. 716; Dority v. Railroad, 188 Mo.App. 365; Walker v. White, 192 Mo.App. 13. (3) The conduct of counsel for respondent in arguing to the jury the matter of respondent's poverty was so prejudical to appellant that its effects were not eradicated by the action of the trial court. It is the function of an appellate court, under such circumstances, to set aside a judgment so obtained and to award a new trial. Bishop v. Hunt, 24 Mo.App. 373; Killoren v. Dunn, 68 Mo.App. 212; Rice-Stix & Co. v. Sally, 176 Mo. 107; Beck v. Railroad, 129 Mo.App. 7; Barnes v. St. Joseph, 139 Mo.App. 545; Barr v. Railroad, 138 Mo.App. 471; Trent v. Printing Co., 141 Mo.App. 437; O'Donnell v. McElroy, 157 Mo.App. 547; Haake v. Milling Co., 168 Mo.App. 177.
Charles P. Comer for respondent.
This is an action for personal injuries to plaintiff, alleged to have been sustained by her while in the employ of the defendant company, and by reason of the defendant's negligence. From a judgment in favor of plaintiff and against defendant in the sum of $ 1750, the defendant appeals.
Plaintiff alleges in her petition that she was in the employ of the defendant company and working upon and about an ironing machine, which was operated by mechanical power; that part of her duty was to iron clothing with said ironing machine and in order to do so it was necessary for her to arrange such clothing upon the machine with her hands, and that when the clothing was properly adjusted and ready for ironing, it was her duty to transmit mechanical power to said machine by pressing upon a treadle with her foot which caused same to operate and iron said clothing.
The petition further alleges that the said ironing machine, upon which plaintiff was required to work, was defective, and that while she was working upon it power was transmitted to said machine in some way unknown to plaintiff and without the application of foot pressure to the treadle thereof, which caused said machine to close upon plaintiff's left hand and to injure the same; that appellant knew, or by the exercise of ordinary care could have known of this defective condition but negligently furnished the respondent with this machine as a result of which negligence plaintiff received the injuries complained of.
The defendant in its answer denied the allegations of the petition generally and pleaded the negligence of plaintiff either "(a), in carelessly placing her hand on the ironing board and in front of the iron while the same was in motion, and in carelessly permitting her hand to remain thereon until it was run upon and burned; or, (b) in placing her hand on the ironing board and in front of the iron while the same was not in operation and in carelessly applying the foot power, thereby causing the iron to run upon and burn her hand."
The plaintiff's reply was a general denial of the allegations in the answer.
Plaintiff testified that at the time she met with her injuries she had been working on the ironing machine in question about a month; that the machine consisted of an ironing board about two and one-half feet long by about eighteen inches wide, with an iron roller set at one end of, and slightly above the ironing board. This iron roller, when the machine was used, was kept at a high temperature; that when the machine is at rest one end of the ironing board is directly under the iron roller. The plaintiff testified that her method of working was to place the garment to be ironed upon the ironing board while the machine was at rest, then to transmit power to the machine by pressing a foot treadle which caused the iron roller to revolve and simultaneously therewith the ironing board, with the clothing to be ironed upon it, would raise up sufficiently to press the garment against the iron and the ironing board by the action of the machine would move backwards and away from the operator and under the iron to its full length. That whenever the pressure was removed from the foot treadle the ironing board would move out from under the iron back toward the operator and come to a rest; that the iron roller is stationary having only a revolving motion; that on the side of the machine there is a lever provided, by which the ironing board can be dropped down and away from the iron about one inch.
Plaintiff further testified that at the time she received her injuries she was ironing a collar of a garment; that the usual way was to stretch it across the top of the ironing board directly under the iron, though the operator could place the collar of the garment across the center of the board or over the lower end of the board, neither of which portions of the board were under the iron when the machine was at rest. Plaintiff further testified that the machine had been out of order for about a month and that it had on a number of occasions, "closed up" of its own accord without her placing her foot upon the treadle and went through the same operation as though the machine had been started by pressing the treadle. Plaintiff further testified that as she was straightening the collar of the coat which she was ironing, on the ironing board, and, "my hand was about six inches from the top of the ironing board under the roller," the machine closed up on her hand and that she had not put her foot upon the treadle nor done anything else to make it "close up;" that as soon as plaintiff was able she pulled her hand out of the machine and that the hand was badly burned, mashed, and all the flesh was taken off, as were parts of several of her finger nails. Plaintiff further testified that she did not know what caused the machine to close up except that it was out of order; that on two or three occasions when it acted that way she had reported the matter to Mr. Klaus, who was the manager of the defendant laundry company and that he had said: "Go on working on that machine; there is nothing the matter with it," and that under his instructions she had continued to work on the machine.
On cross-examination plaintiff testified that:
Plaintiff further testified that the ironing machine moved slowly when the machine was in order, but that when it closed up of its own accord without any pressure on the treadle, That when the machine was out of order the ironing board did not run quite all the way down under the iron. It did not run as far as when starting of its own accord when out of order, as it does when put in operation by pressure on the treadle; that when out of order it lacks about six or eight inches of going to the end of the board.
Plaintiff further testified that it was necessary, ...
To continue reading
Request your trial