Mengel Box Co. v. Dulin

• Decision Date: 04 December 1909
• Docket Number: 2,993.
• Citation: 174 F. 647
• Parties: MENGEL BOX CO. v. DULIN.
• Court: U.S. Court of Appeals — Eighth Circuit

174 F. 647

MENGEL BOX CO. v. DULIN.

No. 2,993.

United States Court of Appeals, Eighth Circuit.

December 4, 1909

Millard F. Watts, William M. Williams, Tyson S. Dines, and William R Gentry, for plaintiff in error.

Albert C. Davis and Chester H. Krum, for defendant in error.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

CARLAND District Judge.

On the 26th day of August, 1907, Will J. Dulin was in the employ of the Box Company and engaged in operating a grooving machine in its factory at St. Louis, Mo. The machine was used to cut grooves in tobacco boxes for the internal revenue stamp. On the day mentioned Dulin, while pushing a box against the knives in the grooving machine, slipped on the floor where he was standing, and by reason of his slipping his hand was caught and injured by the machine. He brought suit against the Box Company, by his next friend, to recover damages for the injury thus received. The only ground of negligence specified in his petition was the putting of Dulin to the work of operating said machine without instructions or caution which would enable him to comprehend and appreciate the dangers of operating the same. It was also alleged that Dulin was of low mentality, of which the Box Company had been advised prior to the date of the injury. Dulin recovered a judgment in the court below.

At the close of all the evidence, counsel for the Box Company requested the court to direct a verdict in its favor, for the reason that Dulin's injuries were caused by the ordinary risks and hazards of his employment which he must be deemed to have assumed. The request was denied, and this action of the court is now assigned as error. We are of the opinion that the request of counsel for the Box Company ought to have been granted. The uncontradicted evidence shows that for a period of one year Dulin had been in the employ of the Box Company in dragging boxes along the floor to the machine in question; that he had worked upon this same machine off and on for two or three weeks prior to the accident. In regard to his knowledge of the danger attending the operation of the machine, Dulin himself testified as follows:

'Q. Then you knew, if you slipped, your hand would be liable to go into the machine? A. Yes, sir. Q. And you knew, if your hand went into those knives, you would be severely hurt? A. Yes, sir. Q. The foreman told you that? A. Yes, sir. Q. You saw the knives cut wood? A. Yes, sir. Q. So you knew they would cut? A. Yes, sir. Q. And you knew the floor was slippery. because you sometimes put soapstone on there

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