Miniea v. Louis Cooperage Company

• Decision Date: 03 June 1913
• Citation: 157 S.W. 1006,175 Mo.App. 91
• Parties: ANTON SYLVESTER MINIEA, a Minor, by Next Friend, Respondent, v. ST. LOUIS COOPERAGE COMPANY, Appellant
• Court: Missouri Court of Appeals

157 S.W. 1006

175 Mo.App. 91

ANTON SYLVESTER MINIEA, a Minor, by Next Friend, Respondent, v. ST. LOUIS COOPERAGE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 3, 1913

Appeal from St. Louis City Circuit Court.--Hon. William B. Homer Judge.

Judgment affirmed.

Charles E. Morrow for appellant.

(1) The petition in this case is based upon section 3 of an Act of April 20, 1891 (Laws 1891, p. 162, now Sec. 7828, R. S 1909), as amended in 1909, Laws 1909, p. 502. (a) The Act of April 20, 1891, has been declared unconstitutional by the Supreme Court on the ground that more than one subject is covered by the act, and that for that reason the statute is unconstitutional and void under the provisions of section 28 of article IV of the Constitution of Missouri. Williams v. Railroad, 233 Mo. 666. This act therefore cannot be the basis of a cause of action. Simpson v. Iron Works Co., 249 Mo. 376, 144 S.W. 895. (b) Even if the Act of 1891, under which the suit is brought, is constitutional, the petition fails to state a cause of action thereunder because it is nowhere alleged that any notice was given to the defendant to guard the machinery in question, as required by section 16 of said Act of 1891 (now Sec. 7842, R. S. 1909) and that the defendant failed to comply with such notice, and for that reason the defendant has not been guilty of a violation of the act so as to subject it to an action by an employee under the statute. Williams v. Railroad, 233 Mo. 666. (c) The petition does not state that the machinery in question was so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duty. And for that reason it fails to state a cause of action under the said Act of 1891 as amended in 1909 (now Sec. 7828, R. S. 1909). Roundtree v. Cement Co., 156 Mo.App. 679; Strode v. Box Co., 124 Mo.App. 511. (d) The petition in this case charges that defendant failed to securely guard the machine in question although it was possible to so guard the same, and also failed to post notice of the danger of said machine in a conspicuous place as provided by the statute where it is not possible to guard the machine. These two grounds are absolutely inconsistent and they destroy each other. And for that reason the petition is bad. Rutledge v. Railroad, 110 Mo. 313; R. S. 1909, sec. 7828. This point can be raised by an objection at the trial to any evidence under the petition. Rutledge v. Railroad, 110 Mo. 313. (2) The court erred in giving plaintiff's instruction No. 3 for the reason that under the evidence in this case the plaintiff is sui juris and must be held in law to the exercise of ordinary care. Herdt v. Koenig, 137 Mo.App. 589; Henry v. Railroad, 141 Mo.App. 351; Stegmann v. Gerber, 146 Mo.App. 104. The instruction does not require the jury to find that the plaintiff was of immature years, nor does it require the jury to take into consideration plaintiff's capacity or intelligence. It assumes that plaintiff, a boy sixteen years of age, was of immature years. And finally the instruction only requires the jury to take into consideration the plaintiff's age; for it provides that if he exercise "such care and caution as a person of his age would ordinarily exercise under the situation and circumstances, then he was not guilty of contributory negligence." This is not the law. Anderson v. Railroad, 81 Mo.App. 116; Anderson v. Railroad, 161 Mo. 411; Berger v. Railroad, 112 Mo. 238; Ruschenberg v. Railroad, 161 Mo. 86; Baird v. Railroad, 146 Mo. 272. (3) If the machine was so placed that no danger to employees would be reasonably expected by the defendant, it was not required to be guarded by statute, and for that reason defendant's instruction No. 3 properly declared the law and the court erred in refusing it. Strode v. Box Co., 124 Mo.App. 511. (4) The court erred in permitting the plaintiff to show that the witness Kunkel had been injured on the machine in question before the plaintiff was hurt. Goble v. Kansas City, 148 Mo. 470; Smart v. Kansas City, 91 Mo.App. 586; Edwards v. Paving Co., 92 Mo.App. 226; Stout v. Columbia, 118 Mo.App. 444; Perry v. Ford, 17 Mo.App. 218. (5) The fact that the defendant may have guarded the machine after the accident could not be shown in evidence. Bailey v. Kansas City, 189 Mo. 510; Schermer v. McMahon, 108 Mo.App. 836; Railroad v. Hawthorne, 144 U.S. 202. Surely the conduct of the plaintiff's attorney in repeatedly asking of witnesses if the defendant had not guarded the machine in question after the accident after the court had held the evidence to be incompetent and ruled it out, and the failure of the court to reprimand counsel for such conduct, constitutes reversible error. State v. Rose, 178 Mo. 34-35; Perry v. Ford, 17 Mo.App. 218-219. (6) It was incompetent for the plaintiff to ask nonexpert witnesses if the machine in question could be guarded, and the court erred in not sustaining defendant's objection thereto. This invaded the province of the jury. Nash v. Dolling, 93 Mo.App. 164. If such a question is proper and could be asked, then the court erred in refusing to allow the defendant to ask the expert witnesses, Meyer and Carroll, whether or not said machine was dangerous to a person while engaged in his ordinary duties. (7) Under the statute and the decisions of this court construing it the defendant was not bound to guard the machine in question unless it had reason to anticipate danger to one while engaged in his ordinary duties, and the court erred in not permitting the defendant to show by testimony that nothing had ever occurred that suggested to it that the machine in question was dangerous to a person while engaged in his ordinary duties. Strode v. Box Co., 123 Mo.App. 521.

Christian F. Schneider filed argument for respondent.

ALLEN, J. Reynolds, P. J., and Nortoni, J. concur.

OPINION

ALLEN, J.

--This is an action for personal injuries suffered by plaintiff while in the employ of defendant, as its servant. The defendant is engaged in the business of manufacturing barrels and other cooperage wares in the city of St. Louis, and plaintiff was injured while working about what is called a trussing machine, used for tightening hoops upon barrels. Plaintiff recovered, and the defendant has appealed.

The action is based upon section 7828, Revised Statutes 1909, being one of the sections of what is known as the Factory Act. This section is as follows: "The belting, shafting, machines, machinery, gearing and drums, in all manufacturing, mechanical and other establishments in this State, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely . . . guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments."

The petition, in substance, avers that plaintiff, in the performance of his duties as a servant of defendant was required to work about the machine in question, and that defendant knew, or by the exercise of ordinary care would have known, that the machine was dangerous, and that plaintiff was apt to be injured or hurt thereby; that while plaintiff was so working about the machine his left foot was caught beneath one of the moving parts thereof and crushed, severely and permanently injuring him. The petition sets up in full section 7828, supra, and alleges that the defendant failed to guard the machine in question, although "it was possible to so guard the same, and failed to post notice of the dangers of the same in a conspicuous place in said establishment; that negligence and carelessness of the defendant in failing to so guard said machine and machinery and its said parts, and failure to post such notice," directly caused plaintiff's injuries.

The answer is a general denial, coupled with a plea of contributory negligence, whereby it is averred that the plaintiff negligently and carelessly placed his foot in, under, and between the parts of the machine about which he was working in such a manner as to be caught between the parts thereof, and that therefore plaintiff's injuries, if any, were caused by his own negligence. The reply denies the averments of the answer respecting plaintiff's contributory negligence.

At the time of plaintiff's injury he lacked three weeks of being sixteen years of age. He had been working upon this machine but two and one-half days, although he had been employed at other work in defendant's factory for some time. His duties, in working about this machine, consisted of lifting barrels therefrom, after the hoops had been tightened upon them by the machine, and placing them on a runway, which took them to another part of the establishment. Another employee operated the machine by means of levers, and placed the barrels in the same. Plaintiff's duties required him to stand near the machine, in order to take off the barrels and place them upon this runway.

The machine was a somewhat peculiar one, and the evidence touching its construction in some particulars is not altogether clear. It appears that it had an iron base, four inches thick, which stood upon small legs fastened to the floor, and which raised the base about one inch above the latter; that some distance above the base was a circular ring, four or five inches in width, which encircled the entire machine and was firmly fastened to the base by uprights; that within this ring there was what may be described as a movable circular platform, upon which the barrels were placed; that when the machine was operated to tighten the hoops upon a barrel one movement thereof pressed the barrel, and the platform upon which it stood, down into the circular rim above mentioned, the platform sinking down to the base of the machine;...