McMillan v. Works

• Decision Date: 14 January 1879
• Citation: McMillan v. Works, 6 Mo.App. 434 (Mo. App. 1879)
• Parties: HENRY J. MCMILLAN, Respondent, v. UNION PRESS-BRICK WORKS, Appellant.
• Court: Missouri Court of Appeals

6 Mo.App. 434

HENRY J. MCMILLAN, Respondent,

v.UNION PRESS-BRICK WORKS, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 14, 1879.

1. The master is bound to use ordinary care to procure suitable machinery, and to keep it in such a condition that the risk to his employees will not be greatly increased by wear and tear. Any such greatly increased risk is the negligence of the master, for which he is responsible.

2. Where the evidence is conflicting, the question of negligence is for the jury, under proper instructions.

3. Where the injury is the loss of an arm, a verdict will not be set aside merely because there was no evidence from which a jury could calculate with accuracy the actual money-loss to plaintiff. The jury may give a round compensation, taking into consideration mental and physical suffering, although the case be not one for punitive damages.

APPEAL from St. Louis Circuit Court.

Affirmed.

S. M. BRECKINRIDGE and L. S. METCALFE, Jr., for appellant, cited: Nolan v. Shickle, 3 Mo. App. 304; Meyer v. Railroad Co., antc, p. 27.

A. R. TAYLOR and S. D. MCCORMICK, for respondent.

BAKEWELL, J., delivered the opinion of the court.

This is an action by a minor, who sues by next friend, against defendant, a corporation, for damages caused by the negligence of defendant in failing to provide safe machinery, by reason of which the plaintiff, whilst in defendant's employ, lost his hand. There was a verdict and judgment for $1,000; and defendant appeals.

The machine at which plaintiff was working at the time of the accident was a brick-machine. On a mould-wheel five feet in diameter, which revolves horizontally, is placed a bed-plate containing eighteen brick-moulds. The moulds, in passing under the feeder where they receive the clay, are covered; but they pass over a space of about fourteen inches which is uncovered. The bottom of each mould is movable, and is called a plunger. This plunger, by means of an incline, is brought level with the bed-plate as it emerges into the open space; and after passing over this space up to a point within an inch or two of the frame, begins to sink, and declines gradually whilst passing over the remaining space, until it reaches the frame or covered feeder, at which point, or at a very short distance beyond which point, it drops to the bottom of the mould so as to receive a fresh charge of clay. The wheel makes three revolutions a minute, and it is the duty of a person employed for that purpose to pass a greased rag over the plunger whilst it is exposed and level with the bed-plate. The object of this is to prevent the clay sticking to the bottom of the mould. The greasing must be done rapidly; the hand is passed two or three times over the plunger, and if the hand remains after the plunger begins to sink, there is danger that it may be drawn along to the covered part of the machine, and be cut off by the meeting of the two surfaces. There is some conflict of testimony as to whether the plunger properly drops before it reaches the frame. Some witnesses testify that it must necessarily drop about four and a half inches before leaving the open space, and others say that whilst, in the machine at which plaintiff was working, the plunger drops half an inch before reaching the frame, at other machines in the same yard it does not drop before reaching the frame. At the time of the accident plaintiff was in his sixteenth year. There is evidence tending to show that he was employed as a cob-hacker,--that is, as one of those who place the soft bricks coming from the machine in rows to dry; that it was the rule of the yard that any boy employed about the place must, if the greaser was obliged to leave the machine, take his place for a time if called upon; that the greaser employed upon the southmost of the three machines in the yard, was taken sick, and called upon plaintiff to take his place, and that plaintiff did so. Three boys are at each machine,--two to remove the bricks, and one to grease. A brick dropped, and plaintiff was called upon by one of the boys to remove it. They were all three standing together in front of the machine, in their proper place, a depression called the pit, about five feet long, just large enough for the three boys to stand and work in. Plaintiff testifies that it was the duty of the greaser to keep this pit clean; that when a brick falls, the takers-off are liable to slip on the wet clay, and the greaser is required to remove it at once. He stooped to remove the brick, and whilst he was in a half-stooping position, with his hand on the bed-plate, engaged in greasing, his hand was carried to the edge of the frame and cut sheer off, so that it fell into the pit and was picked up by one of the other boys. Plaintiff had been, on three occasions before, called upon to grease for a short time at another machine in the same yard, and had done so. There was testimony tending to show that the plunger in the other machine did not fall so soon as did the plunger in the machine at which the accident happened; that, owing to the wear of the machine, there was a difference in the incline which moved the plungers of the two machines, and that this caused a greater depression of the plunger in the machine at which the accident happened, of nearly a quarter of an inch, and caused the plunger to fall four and a half inches before reaching the bed-plate. Plaintiff testified that at the machine which he had formerly greased, the plunger did not fall before it reached the bed-plate, and that he did not know that it would fall before reaching the bed-plate at the machine at which he was hurt; that some clay was sticking to the plunger, and that he was trying to remove it, and that owing to the clay on the plunger he did not see or feel that the plunger was falling. There was testimony that the difference between this machine and the others used on the ground was such as to increase the risk of the greasers. There was a conflict of testimony as to whether the plungers could be efficiently greased by mops, so as to avoid the use of the hand on the plunger, and also as to whether any efficient system of guards could be adopted.

After the accident, a guard was placed on this machine, but was afterwards removed by the foreman, who considered that it rather increased the risk. There seems to...