Morgan v. C. Hager & Sons Hinge Manufacturing Co.

• Decision Date: 13 November 1906
• Citation: 97 S.W. 638,120 Mo.App. 590
• Parties: MORGAN, by His Next Friend, TROLL, Respondent, v. C. HAGER & SONS HINGE MANUFACTURING COMPANY, Appellant
• Court: Missouri Court of Appeals

97 S.W. 638

120 Mo.App. 590

MORGAN, by His Next Friend, TROLL, Respondent, v. C. HAGER & SONS HINGE MANUFACTURING COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 13, 1906

Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.

AFFIRMED.

STATEMENT.--Plaintiff a minor, sued defendant by next friend, for an injury sustained in defendant's factory. The injury was a fracture of a leg and occurred while plaintiff, then about fourteen years old, was an employee of defendant. Defendant is a corporation engaged in the manufacture of hinges in the city of St. Louis. Plaintiff had worked in the factory about two months prior to the accident, but had been occupied on the machine which hurt him but a day or two. However, he was aware of the mode in which it was operated. This machine is called a "pin-pointing" machine. Its use was to grind points on small iron rods less than the size of a lead pencil and three or four inches in length, used to go through orifices in the backs of the wings of hinges to fasten them together. Plaintiff's task consisted in taking one of the little rods and putting it in a groove in a part of the table of the machine, whence it was moved automatically to another part of the machine, ground to a point at one end and ejected into a tank or barrel at the other side. The groove in which plaintiff laid the rod was in an appliance called a conveyer. This appliance carried the rod to the other appliances of the machine to be sharpened or ground. Plaintiff received some directions when he was put to work as to how he was to perform his task. The table of the machine was about three feet in width and six in length. It was set immediately south of the north wall of the building, but not against the wall. Just behind it, in the north wall, was a window. A board extended from this window to the table and while plaintiff was at work he sat astride of this board. Hence he faced south and in working would lay a rod in a groove of the conveyer at the west side of the machine, that is, at his right hand; the rod would be carried by the conveyer eastwardly, sharpened to a point and dropped into a receptacle at the east side. As we understand, there was a covered metallic tank just at the right or west of the table and a trifle to the north of it, on top of which plaintiff kept a supply of rods in an iron pan. The pan had a handle at either end and was rather heavy, weighing fifteen or twenty pounds. Still to the right of the tank was what is called a pillow-block, which is a metal structure whose dimensions are variously given; its height being estimated at from one and a half feet high to a foot, and its breadth at the top at from nine to five inches. The pin pointing machine was operated by a horizontal metal shaft which ran under the table; its ends we believe, resting in sockets in this pillow-block. The shaft was rotated by power conveyed to it by a vertical belt which ran on a pulley near the ceiling of the room. On the horizontal shaft below were a loose and a tight pulley. To rotate the shaft the belt was put on the tight pulley, and to stop it the belt was shifted to the loose pulley. An appliance called a shifter was used for this purpose. West of where plaintiff worked was an old machine and between that one and the one plaintiff used, was an open space or aisle estimated by the witnesses to have been from eighteen to thirty inches in width. When the supply of rods in the pan on top of the tank was exhausted, plaintiff would refill the pan from a large vessel of some kind immediately to the left or east of the machine. To get to this vessel in which the rods were kept, plaintiff would have to go into the aisle west of the machine, then walk around south of the machine to the east side where the vessel was. He had to refill the pan five or six times a day. He testified that before doing so he would shift the belt on the loose pulley so as to stop the running of the machine. To do this he swore he used the shifter and took hold of it with his hand. One of plaintiff's hands had been slightly injured a day or two before the accident, and hence he had not the full use of it in lifting the heavy pan from the top of the tank or can in order to carry it to the east side of the machine and refill it with rods. There was a box just south of the tank on which the pan rested, and to help himself in getting the pan off the can, plaintiff would put one foot on the top of that box lift the pan and lower it onto his knee and then carry it to the vessel east of the machine. The tank on which the pan ordinarily rested was about two and one-half feet high, and the box on which plaintiff would put his foot about seven inches high. According to plaintiff's testimony the can or tank on which the pan sat was about on a line with the vertical belt which operated the machine. Plaintiff said he got hurt in this way: The supply of rods in the pan having become exhausted, he got off his seat on the board and went around to the west side of the pointing machine to lift the pan from the tank. He then put his foot on the low box and was about to get hold of the iron pan and lift it when his foot was caught between the belt and the pulley, breaking his leg. Plaintiff stated several times that he did not know how his foot got caught. He said he was in the aisle when this happened and was just about to take hold of the box with his right hand when his overalls were caught and his foot drawn in between the belt and the pulley. The belt broke and freed his foot after his leg was broken. This testimony was given regarding the extent of the injury:

"Q. Now state what you found each time, Doctor? A. He has evidences of a fractured right leg about five inches above the ankle and some involvement of the tissues around the bone.

"Q. What do you mean by a fracture? A. Breaking of a bone.

"Q. Breaking of a bone? That was in the right leg? A. Yes, sir.

"Q. In the leg, between the knee and the ankle how many bones are there? A. Two.

"Q. What is the condition of those bones? A. There is evidence of a fracture of both bones.

"Q. The limb now, what is its condition as to being in the shape of a normal limb? A. It is deformed and bent and somewhat weakened and larger by reason of the tissues being involved around about the fracture. There is a thickening of the tissues, and a thickening of the tendons, immediately below the site of the fracture.

"Q. Will that interfere with the use of the leg? A. Well, it weakens it some; it will be a good weather indicator; he will feel the changes of the weather, which will be manifested by pain. He will find it weaker than the other limb.

"Q. Are those conditions permanent, in your opinion? A. I think so.

"Q. The pain will remain and the deformity of the limb? A. Yes, sir; the deformity won't change. The tissue thickening has remained since last fall. The circumference at that point I think is about a half an inch larger than the other leg.

"Q. Where the tendons are involved, will that remain? A. Yes, sir.

"Q. It will continue to be a weather indicator and pain him in bad weather? A. Yes, sir."

Plaintiff's testimony gives the impression that he had shifted the belt onto the loose pulley before he put his foot on the box and reached for the pan, and that his foot caught between the loose pulley and the belt.

There are two paragraphs in the petition. The first counts on common law negligence in maintaining the machine, belts and pulleys in an unsafe condition and negligently putting plaintiff to work with them, knowing he was youthful and inexperienced, and without protecting or warning him against the danger of using the machine or being in the aisle. The second paragraph is founded on the statute requiring belting when so placed in factories as to be dangerous, to be guarded. It alleges a violation of this statute in leaving the belting and pulleys on the horizontal bar unguarded, and that in consequence plaintiff got hurt. The answer contained a general denial and a special plea in bar to each of the counts of the petition. To the first count it was pleaded that plaintiff was guilty of negligence which directly contributed to the accident in this; that he was fully instructed in the use of the machine and told to shift the belt from one pulley to the other by hand and not otherwise; that instead of doing this he undertook to shift the belt by putting his right foot on the fork of the shifter and it was caught. To the second paragraph of the petition a similar defense was pleaded. The pleas in bar were put in issue by a reply in the form of a general denial. One defense relied on is that plaintiff failed to show that before filing his petition, there was filed in the office of the clerk of the circuit court a petition for the appointment of a next friend, the written consent of the next friend to act and the order of appointment. The order of appointment was put in evidence. It showed that Harry Troll was appointed next friend and recited that Troll had consented in writing to act in that capacity. His written consent was not introduced, nor was the petition for the appointment. But the record shows that the court asked to see the petition for the appointment of a next friend before making the order and it was exhibited. On the back of it was the following indorsement: "1905; Nov. 17th. Petition for appointment of next friend. Harry Troll appointed next friend as prayed."

One of the deputy factory inspectors of the State was interrogated while on the witness stand, as an expert regarding the safety of the appliance by which plaintiff was injured, and an exception was saved to the exclusion of certain testimony which he would have given. The examination of this witness on the...