Mitchell v. Mutual Press Brick Co.

• Decision Date: 02 December 1924
• Docket Number: No. 18705.,18705.
• Citation: 266 S.W. 1013
• Parties: MITCHELL v. MUTUAL PRESS BROCK CO.
• Court: Missouri Court of Appeals

266 S.W. 1013

MITCHELL v. MUTUAL PRESS BROCK CO.

No. 18705.

St. Louis Court of Appeals. Missouri.

December 2, 1924.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by William Mitchell against the utual Press Brick Company. Verdict for plaintiff, and, from order granting motion for new trial, he appeals. Affirmed.

Jones, Rocker, Sullivan & Angert, of St. Louis, for appellant.

Julius R. Nolte, of Clayton, for respondent.

ALLEN, P. J.

This is an action for personal injuries alleged to have been sustained by plaintiff while in the employ of the defendant corporation as its servant. The trial below resulted in a verdict in plaintiff's favor for the sum of $7,500. The trial court, however, sustained defendant's motion for a new trial on the ground that "the court erred in giving instruction No. 1 to the jury, the same being departure from the petition."

The petition alleges that plaintiff was employed by defendant as a teamster, and that on or about October 16, 1921, the defendant, through its superintendent, ordered plaintiff to assist other employees of defendant in unloading from a railroad car a heavy, "brick making machine" which was being raised from its position on the bottom of the car by means of a jackscrew; that plaintiff was ordered by defendant's superintendent to bear down on a lever attached to the jackscrew, for the purpose of raising the machine; and that while plaintiff was so doing, and while exercising ordinary care for his own safety, the jackscrew slipped from beneath the machine, causing the lever to fly upward and throwing plaintiff to the floor of the car with great force and violence, whereby he was injured.

The petition charges that plaintiff's injuries were due to the negligence of the defendant in the following particulars, viz.:

"(1) Defendant, through its superintendent, negligently, carelessly, and " recklessly placed said jackscrew under said machine in a manner in which defendant, through its superintendent, knew or by the exercise of ordinary care could have known, would cause said jackscrew to slip from under said machine upon plaintiff bearing down on said lever.

"(2) Defendant, through its superintendent, negligently and carelessly failed to furnish plaintiff with a reasonably safe place to work, in that defendant knew, or by the exercise of ordinary care on its part could have known, that said brick making machine and jackscrew used in raising the same were likely to fall against plaintiff while in the act of bearing down on the lever of said jackscrew and injuring him.

"(3) Defendant, through its superintendent, negligently, carelessly, and recklessly failed to furnish plaintiff with a reasonably safe tool for the prosecution of said work, in that defendant knew, or by the exercise of ordinary care could have known, that said jackscrew was not of a size and type suited to the work of raising said brick making machine, and was likely to slip from under the same and injure plaintiff.

"(4) Defendant, through its superintendent, negligently and carelessly failed to warn plaintiff of the danger of bearing on said lever when defendant and its superintendent knew that plaintiff was inexperienced in the work of using said jackscrew, and knew that plaintiff's ordinary duty was that of a teamster in the employ of defendant."

The petition then contains averments as to the character and extent of plaintiff's alleged injuries and loss, and prays judgment for $15,000.

The answer is a general denial, coupled with a plea to the effect that plaintiff's' injuries, if any, were caused by the usual and ordinary risks and danger incident to the work in which he was engaged, and which were assumed by him.

The testimony in plaintiff's behalf tends to show that plaintiff was directed by defendant's foreman to assist in unloading the brick making machine; that the jackscrew was placed on the bottom of the car and beneath a ledge on the machine, but was placed "on a slant"; that plaintiff and another employee were directed by the foreman to bear down upon the lever attached to, the jackscrew; and that while they were so doing the jackscrew slipped from beneath the machine, causing plaintiff's injury. Plaintiff said:

"Mr. Henry (the foreman) gave us an order to pull down on the jack, so I pulled down on the jack, and the top of the jack flew back from under the machine and snatched me over."

And his testimony tends to show that as a result of the slipping of the jack his back was injured.

Other testimony for plaintiff went to show that the jackscrew was too large, i. e. too tall, to be placed under the machine in a vertical position; that it was placed thereunder in a slanting position, and slipped as alleged by plaintiff.

It appears that plaintiff made no complaint to any one at the time of his alleged injury, which is said...