Modlagl v. Kaysing Iron & Foundry Co.

• Citation: 154 S.W. 752,248 Mo. 587
• Court: United States State Supreme Court of Missouri
• Decision Date: 28 February 1913
• Parties: MODLAGL v. KAYSING IRON & FOUNDRY CO.

154 S.W. 752

248 Mo. 587

MODLAGL v. KAYSING IRON & FOUNDRY CO.

Supreme Court of Missouri, Division No. 1.

February 28, 1913.

Rehearing Denied March 15, 1913.

1. MASTER AND SERVANT (§ 103) — INJURIES TO EMPLOYÉ — DUTY TO KEEP TOOLS IN ORDER.

In a suit for injuries to a blacksmith, it was not error to authorize the jury to find that it was a part of his duty to keep his tools in order, when it was shown that he was an experienced workman employed to perform a blacksmith's ordinary duties, and testified himself to making and tempering chisels under a foreman's orders.

2. MASTER AND SERVANT (§ 103) — DUTIES OF SERVANT.

Under a general employment the master has a right to direct his employés to do any and all things within the scope thereof.

3. MASTER AND SERVANT (§ 103) — DUTIES OF SERVANT.

The master may trust the servant to perform the intermediate, ordinary, and simple duties incidental to his employment and resting on his knowledge and skill.

4. TRIAL (§ 252) — INSTRUCTIONS — APPLICATION TO CASE.

It is error to instruct on a proposition of which there is no evidence.

5. APPEAL AND ERROR (§ 1066) — HARMLESS ERROR — INSTRUCTION NOT SUPPORTED BY EVIDENCE.

In a suit for injuries to an employé from a defective chisel, which it was his duty to keep in repair, it was harmless error for an instruction to permit a finding that he allowed it to become defective, though there was no evidence thereof.

6. MASTER AND SERVANT (§ 296) — ACTION FOR INJURIES — INSTRUCTIONS.

Where it was the duty of an employé, suing for injuries, to repair a defective chisel with which he worked, his objection to an instruction, because it permitted the jury to find that he negligently failed to repair and trim it, is untenable.

7. MASTER AND SERVANT (§ 291) — INSTRUCTIONS — APPLICATION TO CASE.

In a suit for injuries to an employé in using a chisel, wherein he testified as to chisels he used in his work, that he made four and tempered and repaired several others, and another witness testified there were several other chisels like plaintiff used, and he made his own selection, the evidence was sufficient to warrant an instruction permitting a finding that he was supplied with safe chisels.

8. MASTER AND SERVANT (§ 235) — DUTIES OF SERVANT — REPAIRING SIMPLE TOOLS.

If a mechanic does not think a simple tool with which he works is reasonably safe, it is his duty to repair it before using it, where there are no others at hand.

9. APPEAL AND ERROR (§ 1033) — HARMLESS ERROR — SUBMITTING QUESTION TO JURY.

In a suit for injuries to an employé, claimed to be due to the negligence of a fellow servant, wherein uncontradicted evidence showed that the relation of fellow servant existed between plaintiff and another with whom he worked when injured, it was error in his favor to

submit to the jury the question whether they were fellow servants.

10. MASTER AND SERVANT (§ 209) — INJURIES TO SERVANT — ASSUMPTION OF RISK.

An employé, injured by a piece of metal striking him in the eye while chipping off rivet heads with a defective chisel, assumed the risk of injury from a piece of metal coming from a rivet head; and where it was not shown whether it came from the rivets or his chisel he could not recover.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Suit by Lois Modlagl against the Kaysing Iron & Foundry Company. From a judgment for defendant, plaintiff appeals. Affirmed

The plaintiff instituted this suit in the circuit court of the city of St. Louis against the defendant to recover $15,000 damages for personal injuries sustained by him through the alleged negligence of the latter. A trial was had before the court and a jury, which resulted in a verdict and judgment in favor of the defendant, and in proper time and due form the plaintiff appealed the cause to this court.

The petition was as follows (formal parts omitted):

"Plaintiff states that the defendant is, and was at the times hereinafter mentioned, a corporation duly organized under the laws of the state of Missouri, and, as such, engaged in the business of conducting an iron foundry. Plaintiff further states that on or about the 8th day of June, 1909, he was in the employ of the defendant as its servant, and was on said date directed by the foreman of defendant, who had authority from the defendant to control the actions of the plaintiff and to give him orders as to the work which he was required by defendant to do, to assist a fellow servant by the name of Rudolph Heerich in cutting off certain nuts and rivet heads from the side of an iron steel beam; that the said fellow servant was using a sledge hammer, and it became necessary for the plaintiff to use a heavy chisel, which plaintiff would place upon the nuts and rivet heads which it was desired to remove, and upon which chisel the said fellow servant of plaintiff would strike heavy blows with a sledge hammer. Plaintiff further states that on said occasion defendant negligently and carelessly furnished to plaintiff for use in said work a certain steel chisel which was not reasonably safe for use for said purpose in this, to wit: That said chisel was old and badly worn down from long use and from the heavy licks that had long been applied to it, and the top of said chisel was worn, cracked, rough, and scaly, and the edges of the top thereof were uneven, worn, and jagged, all of which made said chisel unreasonably unsafe for the purposes for which it was intended to be used, because of danger of pieces of the top of said chisel breaking off when it was struck heavy licks with the sledge hammer, as it was necessary that it should be struck when used for said purpose. Plaintiff further states that the condition of said chisel, above referred to, and the danger incident to the use thereof for such purposes were well known to the defendant, or by the exercise of ordinary care on its part would have been known to it before it furnished said chisel to plaintiff on said occasion.

"Plaintiff further states that while attempting to use said chisel for said purpose, and while he was holding to the wooden handle which was inserted through the hole near the top of said chisel, his said fellow servant, Rudolph Heerich, struck said chisel a violent blow with the sledge hammer, as his duty required him to do in order to break off a certain nut or rivet head, and that as a result of the said defective condition of said chisel, when it was so struck, a small piece broke off of the top of said chisel and flew into the plaintiff's left eye, inflicting serious injury thereto, so that it became necessary for plaintiff to have the eyeball of his said left eye entirely removed.

"Plaintiff further states that as a result of his said injury to his eye he was obliged to go to a hospital and to receive medical and surgical treatment for a long time, was confined to his bed, has suffered and will suffer great pain of body and mind, has entirely lost the sight of his left eye, has incurred and will incur large expenses for the services of physicians and surgeons, for care and attendance at the hospital, for medicines, and for an artificial eye, and has lost and will lose the earnings of his work and labor, and as a result of the injury to and removal of his left eye the sight of his right eye has also been impaired.

"Wherefore plaintiff says he is damaged in the sum of fifteen thousand dollars ($15,000), for which sum he prays judgment against defendant, together with the costs of this cause."

The amended answer was as follows:

"Comes now the defendant in the above-styled cause and, in answer to the plaintiff's petition filed herein, denies each and every allegation therein contained. Further answering, defendant states that plaintiff's injury, if any, was directly caused by his own negligence and carelessness and the negligence and carelessness of his fellow servant in this: That plaintiff and the said fellow servant, or either of them, carelessly and negligently selected and took for his own use from among a pile of reasonably safe chisels a chisel or tool which, if unsafe plaintiff knew, or by the exercise of ordinary care could have known, was unsafe.

"Defendant further states that plaintiff was employed by defendant as a blacksmith and toolsmith; that it was his duty as such blacksmith and toolsmith to make, repair, and put in reasonably safe condition all tools used by himself and other workmen of the defendant before they were used by himself or other employés of defendant; that plaintiff, at the time of the accident alleged in said petition, continued to use a tool which, if unsafe, he knew, or by the exercise of ordinary care could have known, was not in a reasonably safe condition; that said tool could have been repaired and made reasonably safe, but plaintiff carelessly and negligently continued to use the said tool without first having repaired the same. Defendant further alleges that, if the small piece of steel mentioned in plaintiff's petition broke off from the chisel then being used by plaintiff, it was caused to break off and fly therefrom by the negligent and careless manner in which plaintiff held said chisel, and by the negligent and careless manner in which plaintiff's fellow servant struck the same with the sledge or hammer mentioned in plaintiff's petition; that said chisel was so held and said hammer was so swung that said chisel was struck or hit a glancing or slanting blow on the top thereof, thereby causing a piece of same to break; that had said chisel been struck directly on the top thereof said piece would not have been caused to break off and fly away from said chisel.

"For another and further defense defendant states that at the time of plaintiff's injury plaintiff was engaged in cutting rivet heads or bolts from iron crossbeams; that in cutting said rivet heads or bolts small pieces or particles of steel are necessarily caused to break away from and fly from said rivet heads, chisel, or...