Miniea v. St. Louis Cooperage Co.

• Decision Date: 02 June 1913
• Citation: 157 S.W. 1006
• Parties: MINIEA v. ST. LOUIS COOPERAGE CO.
• Court: Missouri Court of Appeals

157 S.W. 1006

MINIEA v. ST. LOUIS COOPERAGE CO.

St. Louis Court of Appeals. Missouri.

June 2, 1913.

Rehearing Denied June 17, 1913.

1. MASTER AND SERVANT (§ 14) — GUARDING MACHINERY — VALIDITY OF STATUTES.

Rev. St. 1909, § 7828, requiring that belting, machinery, etc., in all manufacturing plants, when so placed as to be dangerous to persons employed therein, to be safely guarded, or notice of the danger conspicuously posted, is valid.

2. MASTER AND SERVANT (§ 121) — MASTER'S DUTY — GUARDING MACHINERY — NOTICE BY FACTORY INSPECTOR.

Notice by the factory inspector of the danger from unguarded machinery and the necessity of guarding is not necessary, under Rev. St. 1909, § 7828, to make an employer liable

for injuries from failure to properly guard machinery.

3. PLEADING (§ 34) — CONSTRUCTION — DANGER FROM MACHINERY.

The petition in an employés personal injury action alleged that plaintiff, in the performance of his duties, was required to work about a particular machine, and that defendant, in the exercise of ordinary care, could have known that it was dangerous, and that plaintiff was apt to be injured thereby, and that, while plaintiff was so working about the machine, his left foot was caught under a moving part and injured. And the petition further alleged that defendant failed to guard the machine, though it was possible to guard the same, and failed to post notice of the danger therefrom. Held, that the petition sufficiently alleged, as against attack after verdict for failure to allege a cause of action, that the machine was so placed as to be dangerous to employés while engaged in their ordinary duties.

4. APPEAL AND ERROR (§ 930) — PRESUMPTIONS.

After verdict every reasonable inference is to be indulged in its favor.

5. PLEADING (§ 35) — SURPLUSAGE.

Where the petition, in an employés personal injury action, alleged a cause of action under Rev. St. 1909, § 7828, for failure to guard dangerous machinery, additional allegations that defendant failed to post notice of the danger in a conspicuous place, and that negligence in failing to post a notice caused the injury, could be treated as surplusage.

6. MASTER AND SERVANT (§ 121) — INJURIES — NEGLIGENCE.

The violation of Rev. St. 1909, § 7828, requiring machines, etc., when so placed as to be dangerous to persons employed thereabout, to be guarded, is negligence per se.

7. MASTER AND SERVANT (§ 289) — INJURIES — CONTRIBUTORY NEGLIGENCE — JURY QUESTION.

Evidence, in an action for injury to an employé by coming in contact with an unguarded machine about which he was working, held to make the question of contributory negligence one for the jury.

8. MASTER AND SERVANT (§ 289) — NEGLIGENCE — JURY QUESTION.

Unless the evidence, viewed most favorably to appellee employé, shows negligence by him so clearly that reasonable minds may not differ thereon, the question of contributory negligence is for the jury.

9. MASTER AND SERVANT (§ 230) — CONTRIBUTORY NEGLIGENCE — CHILDREN.

The conduct of an immature, youthful servant should not be judged by the standard of what an ordinarily prudent man would have done under the circumstances, but only with reference to the conduct of an ordinarily prudent boy of his age.

10. APPEAL AND ERROR (§ 216) — PRESENTATION BELOW — INSTRUCTION.

An objection to an instruction, in an action for injuries to an employé by failing to guard machinery, which authorized the jury to consider plaintiff's age and experience in determining whether he was negligent, that plaintiff's age was not the only thing to be considered on the question, cannot be first made on appeal, where appellant did not request an instruction supplying the alleged defect.

11. MASTER AND SERVANT (§ 286) — INJURIES — JURY QUESTION.

Whether the machine by which plaintiff employé was injured was so placed as to be dangerous to employés while engaged in their ordinary duties held for the jury.

12. TRIAL (§ 252) — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

Where there was no evidence tending to show that the injury to an employé was accidental, there was no error in refusing an instruction submitting the theory of accident.

13. MASTER AND SERVANT (§ 270) — INJURIES — ADMISSION OF EVIDENCE.

In an action for injuries to an employé for failure to guard a machine, evidence that another had previously been injured on the machine was admissible solely for the purpose of showing that the machine was dangerous to those working about it; that being an issue.

14. EVIDENCE (§ 483) — OPINION EVIDENCE — NONEXPERT OPINION.

Evidence as to whether a machine on which an employé was injured could have been guarded without interfering with its operation was admissible within the exception to the general rule, requiring nonexpert witnesses to state facts, and not give their opinions, if the evidence was an opinion.

15. APPEAL AND ERROR (§ 1051) — HARMLESS ERROR — ADMISSION OF EVIDENCE.

Any error in permitting a nonexpert witness to testify whether the machine on which an employé was injured could have been guarded without interfering with its operation was harmless to defendant, where its president, an expert, admitted that the machine could have been guarded as stated by him.

16. MASTER AND SERVANT (§ 270) — INJURIES — ADMISSION OF EVIDENCE — REPAIRS.

Evidence that the machine on which an employé was injured was guarded after the accident was not admissible in an action for such injuries.

17. EVIDENCE (§ 472) — OPINION EVIDENCE.

In an employé's action for injuries from failure to guard a machine, a question asked defendant's superintendent, as to whether the machine, as it was operated, was dangerous to one in plaintiff's position while engaged in his ordinary duties, was properly excluded.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Anton Sylvester Miniea, by George Miniea, his next friend, against the St. Louis Cooperage Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas. E. Morrow, of St. Louis, for appellant. Christian F. Schneider, of St. Louis, for respondent.

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, Rev. Stat. 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 or the defendant in failing to so guard said machine and machinery and its said parts, and failure to post such notice," directly caused planitiff'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 3 weeks of being 16 years of age. He had been working upon this machine but 2½ 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 employé 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; that the platform and barrel...