Mueller v. La Prelle Shoe Co.

• Decision Date: 24 January 1905
• Citation: Mueller v. La Prelle Shoe Co., 109 Mo. App. 506, 84 S.W. 1010 (Mo. App. 1905)
• Parties: MUELLER v. LA PRELLE SHOE CO.
• Court: Missouri Court of Appeals

84 S.W. 1010

109 Mo. App. 506

MUELLER v. LA PRELLE SHOE CO.

St. Louis Court of Appeals. Missouri.

January 24, 1905.

SERVANT'S INJURIES—ACTION—INSTRUCTIONS— PLEADING—PETITION—QUESTION FOR JURY.

1. Where, in an action for injuries to a servant 18 years of age, whose hand was caught in the rollers of a machine, he testified that he understood fully how to operate the machine, and the mode of working it was simple, and had been seen by him for several months, and his injury was not due to a lack of knowledge as to how to operate it, the master was not negligent for failure to instruct him regarding the operation.

2. The petition in an action for injuries to a servant, whose hand was drawn between the rollers of a machine, alleged that the machine was not in a reasonably safe condition "and also in this, to wit," that the fenders and safeguards were not provided as they should have been in the exercise of reasonable care; and another count in the petition declared on defendant's negligence in not providing fenders as required by the statute. Held, that the allegation that the machine was not in a safe condition was restricted by the statement as to the omission of duty in failing to provide fenders, and was not a statement of a cause of action for a defective treadle.

3. In an action for injuries to a servant, an allegation of the petition that the machine on which plaintiff was put to work was not reasonably safe was insufficient to state a cause of action, where not accompanied by an allegation that defendant knew, or by ordinary care could have known, that the machine was unsafe.

4. Where, in an action for injuries to a servant, the petition alleged that the machine on which plaintiff was put to work was not reasonably safe, but it was insufficient for failing to allege that defendant knew or could have known that the machine was unsafe, there being nothing in the petition to suggest that defendant knew the machine was unsafe, the omission of an averment as to his knowledge could not be cured by verdict.

5. Where a servant 18 years of age and of average intelligence was aware of the danger of his hand being caught in the rollers of the machine which he operated, the master was not negligent in failing to warn him of the danger.

6. In an action for injuries to a servant whose hand was drawn between the rollers of a machine, held that under the evidence the question of assumption of risk was one for the jury.

7. In an action for injuries to a servant, whose hand was drawn through the rollers of a machine, evidence considered, and held that the question of plaintiff's contributory negligence was one for the jury.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by George F. Mueller, by his curatrix, against the La Prelle Shoe Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Wise & McNulty and Seddons & Holland, for appellant. R. T. Brownrigg and W. L. Mason, for respondent.

Opinion.

GOODE, J.

Personal injury case. At the time plaintiff was hurt he was a minor past 18 years of age, and working in the defendant's shoe factory. He was employed in that factory July 23, 1903, and injured on the 13th day of the following October, but had worked on the machine that hurt him less than three days before the accident. That machine was for pressing leather. It had two iron rollers, one placed above the other, and rolling inwardly, which took hold of pieces of leather fed to them by hand and drew the pieces through, thus smoothing their surfaces. A horizontal table was immediately in front of the two rollers, with its inner edge opposite the space between them. Beneath the platform was a coiled spring about a foot in length, and projecting from the lower end of the spring was a bent arm, which ended in a flat treadle a foot long and eight inches wide, set nearly horizontally, to be worked by the foot of the operator of the machine. This treadle was intersected by deep grooves a quarter of an inch apart, cut into the upper surface, to roughen it and give the operator a better foothold. The rollers were turned by a belt working on a wheel at the side and on shafting above, driven by steam power. In operating the machine the workman would put his foot on the treadle, press it downward, and thereby raise the lower roller so that the leather was drawn between the two rollers and pressed. When the workman removed his foot, the lower roller would drop. The accident was due to the plaintiff's foot slipping off the treadle, causing him to lose his balance, tilt forward, and thrust his hand between the rollers, which crushed it.

The only ground for a verdict in plaintiff's favor allowed by the instructions was a finding that the condition of the treadle rendered it dangerous to work with; that such condition was known to the defendant, or could have been by care; and that the danger was not known and appreciated by plaintiff, or, if known and appreciated, was not so imminent and immediate as, under the circumstances in evidence, would deter an ordinarily prudent person of plaintiff's years and experience from operating the machine. The treadle was said to be in bad order and dangerous, because its surface had been worn so slick by use that the operator's foot would slip off, thus endangering him. The plaintiff said the top of the treadle "was a good deal worn off and slippery." He had seen the machine at work several months before he was put to work on it, and testified that he knew all about operating it; as doubtless he did, for it was of simple construction and movement, and required but little study to understand. He said that before the day of the accident, which was the third day he worked on the machine, his foot slipped off the treadle five times or more; twice the first day, and three times the second. He said, too, that he knew there was danger of his foot slipping off, because of the smoothness of the treadle, and danger of his hand getting caught between the rollers as the result of such a slip; that he knew all those matters after he had tended the machine two days as well as if he had worked on it two weeks. And his evidence leaves no doubt that prior to the injury he not only comprehended the imperfect state of the treadle, but the danger to which it exposed him. He testified to using pieces of bagging and leather on the treadle to make his foothold more secure, and to a conversation with the foreman, which was relied on to prove notice to the defendant that the treadle was in bad repair. The plaintiff's testimony regarding that matter is that the foreman, seeing a piece of crumpled leather on the floor, spoke to plaintiff about it, and plaintiff told him he had used it on the treadle to keep his foot from slipping, whereupon the foreman said the leather was not there for that purpose. The foreman said he had never thought of the appliance as out of repair, and had received no information from any one that it was. He denied having had any conversation with the plaintiff about it. A man who had worked on the machine previously testified that he experienced no difficulty; that the treadle was in good order, and his foot had never slipped. An expert on shoe machines swore a machine of this kind was expected to last 10 years or more, that the treadle lasted as long as the rest of the machine, and that new treadles had never been supplied for pressing machines, or needed. The machine in question was placed in the factory in January, 1902, less than two years prior to the accident. A picture of it was put in evidence, which shows deep grooves across the surface of the treadle.

A point is made about the petition in this case in regard to the admission of testimony, so it is necessary to state the negligence charged, and this will best be done by copying from the petition itself: "Plaintiff further says that said defendant wholly failed and neglected to perform the duties which, as master, it owed to said plaintiff while engaged in its employment as aforesaid, and that defendant's said negligence consisted in this, to wit, that when plaintiff's work was changed as aforesaid he was not properly instructed as to the operation of the machine at which, as aforesaid, he was newly placed to work, and that defendant failed to give plaintiff such instruction and warning with reference to the dangers of said machine as, in the exercise of reasonable care, defendant should, under the circumstances stated aforesaid, have given to a person of plaintiff's youthfulness and inexperience; and in this, to wit, that said machine at which plaintiff was last placed to work, as aforesaid, was not in a reasonably safe condition; and also in this, to wit, that such fenders and safeguards were not provided for and attached to said machine as defendant, in the exercise of reasonable care, should have provided for screening and protecting the gearing and shafting of said machine at which it employed a person of plaintiff's youthfulness and inexperience. As a direct result of the premises and of defendant's...