Nagy v. St. Louis Car Co.
| Citation | 37 S.W.2d 513 |
| Decision Date | 31 March 1931 |
| Docket Number | 29262 |
| Parties | NAGY v. ST. LOUIS CAR CO |
| Court | United States State Supreme Court of Missouri |
R. P. & C. B. Williams and Leo P. Ehrhard, all of St. Louis, for appellant.
Lehmann & Lehmann, of St. Louis, for respondent.
This plaintiff, a Hungarian by birth, received severe injuries to his arm and wrist while working for defendant in St. Louis by reason of his arm being caught, twisted, and crushed by and in a machine called a 'drill press.' He brought suit for his injuries, and on a jury trial there was a verdict for defendant. Thereupon the plaintiff took the necessary steps, and has appealed the case to this court.
This plaintiff claims that the verdict was brought about by an erroneous instruction of the court given to the jury which practically amounted to a peremptory instruction to find for defendant on plaintiff's contributory negligence. This is the matter which we are called on to consider.
The defendant operated large machine shops in St. Louis in making and repairing street cars and other such machinery. The petition alleges and the evidence shows that in September 1926, the plaintiff was in defendant's employ as a common laborer in the blacksmith department of its machine shop; his work being that of a blacksmith helper. At the time of his injury, George Berkemeier was the blacksmith foreman, and plaintiff and Lee Bass were his helpers. They worked with and at the direction of Berkemeier, their foreman. Plaintiff's principal work was in the blacksmith department in using a sledge-hammer in welding, bending, and shaping iron. He was injured, however, in the truck department, which was under the same roof where he had gone with and at the direction of his foreman to assist in having some holes drilled in an iron form or pattern. The operation of the drill press in drilling the holes was done by the blacksmith foreman, Mr. Berkemeier, by the use of this drill press located in the truck department. Plaintiff's work in this connection was principally in helping carry this iron form to and from the drill press, putting it in position, and helping to handle it.
Plaintiff's petition alleges that on this occasion the foreman ordered and directed him and the other helper to work at the drill press, which was out of line of his regular work, and to assist said foreman in drilling holes in a steel pattern, and that, while he was engaged in said work under the directions of the foreman 'and while holding a steel pattern placed in said drill press, his arm and a rag which he was required to wear thereon got caught in the drill press, causing his right arm to become caught in the machinery and bit of the said drill press and directly causing plaintiff's arm, wrist, elbow and bones therein to become dislocated, fractured, and to sustain other serious and permanent injuries as hereinafter alleged.' The cause and manner of his injury is then alleged to have been that, being employed as a common laborer and blacksmith helper, 'he was inexperienced at working at a drill press and did not know the dangers incident to such work; that in the course of plaintiff's work as a blacksmith helper he was required to wear on his arm a rag to prevent his hand and arm from being burned, and plaintiff avers that on account of his inexperience and unfamiliarity with the uses and operation of a drill press, he was unaware of the danger of his said arm and the rag which he wore thereon getting caught in the machinery, or the bit of the said drill press.'
These matters are alleged not as being themselves negligent, and are not so characterized, but by way of inducement or as furnishing the background or basis of defendant's negligence. Plaintiff then alleges defendant's negligence in these words: 'Plaintiff says that the said defendant and its foreman and agent knew, or by the exercise of ordinary care could have known, that plaintiff was inexperienced in working at a drill press and wholly unaware of the dangers incident thereto, and, notwithstanding, said defendant and its said agent directed and ordered plaintiff to assist defendant's foreman in working at said drill press as aforesaid, and negligently failed to inform plaintiff of said dangers and the precautions that plaintiff should take in order to avoid being injured in working at a drill press, and negligently failed to warn plaintiff of the dangers arising from working at said drill press, and negligently failed to instruct the plaintiff how to avoid the dangers incident to said work, as a direct result whereof plaintiff was injured.' (The italics, of course, are ours) Plaintiff then avers that, as a direct result of 'the negligent acts above alleged,' he sustained injuries, set out in detail, and for which he prays damages in the sum of $ 15,000.
In explanation of these allegations, the evidence showed that blacksmith helpers were furnished with material with which to make a covering or sort of glove for the protection of the hand and arm against heat and sparks from the forge and anvil. This is what is referred to in the pleadings and evidence as the rag on his hand and arm. It is shown that, in the course of drilling a hole in iron, iron or steel shavings are cut and formed which extend out from the drill bit six inches to a foot, and one of these steel shavings on this occasion caught in this rag glove worn by plaintiff, and the drill, being in motion, drew plaintiff's hand and arm toward it and twisted same around the drill. Just why plaintiff's rag-covered hand was caught by the steel shaving and what plaintiff was doing at the time became a matter on which the evidence conflicted.
The defendant's answer in this case is terse and to the point. It is a general denial, and then says: 'Further answering, defendant states that plaintiff's injuries, if any, were caused by his own negligence in this, to-wit: Carelessly, negligently and unnecessarily reaching out with his hand so that it came into contact with a moving drill.'
We have called attention to the issues made by the pleadings in view of instruction IV for defendant, which the court gave and of which plaintiff complains as error, presently to be quoted and discussed.
There was evidence pro and con on the question of plaintiff's ignorance and unfamiliarity with the kind of work he was called on to do and the machinery with which it was done and the dangers attendant on doing such work with such machinery. This question was submitted to the jury on instructions not here objected to. It was practically conceded that defendant did not instruct or warn plaintiff as to the dangers of his rag-covered hand being caught in this machinery or instruct him how or the necessity of guarding against such dangers. This evidence went to the question of plaintiff's primary negligence.
There is a material conflict in the evidence of the respective parties as to what plaintiff was doing and his actions at the time his rag-covered hand was caught and drawn to the running drill. The plaintiff testified that he was holding down with his hand the steel form or pattern which had been placed on the platform of the drill press and into which the holes were being bored, and while doing so his hand got caught by the steel shavings. Defendant's witnesses testified that plaintiff was not required to and was not at that time holding down this iron frame with his hand, but that, while the foreman was drilling this hole, he had nothing in particular to do, that the drilling of the hole had been completed and the power turned off to let the drill stop in order to clean it of the steel shavings, and that apparently plaintiff undertook to brush the steel shavings from the drill with his hand, and thus his hand was caught thereby.
It will readily be seen that plaintiff's evidence on this point supported his theory of the case, and that defendant's evidence supports and is in line with its plea of contributory negligence, in that plaintiff's injuries, if any, were caused by his own negligence, in that 'he reached out with his own hand so that it came in contact with a moving drill,' which act defendant's answer characterizes as being careless, negligent, and unnecessary.
The court, over plaintiff's objections and exceptions, gave to the jury instruction IV, which reads: 'If the jury find and believe from the evidence that at the time plaintiff was injured he was assisting George Berkemeier in drilling a hole in some iron, and that while so doing he attempted to brush a steel shaving from a bit in the drill and that as a result thereof his hand was twisted around the drill and he was injured, your verdict must be for the defendant.'
This instruction, it will be noticed, covers the whole case, and directs a verdict for defendant on the finding of the fact therein predicated, to wit, that plaintiff attempted to brush a steel shaving from the bit in the drill and was injured in that way. This instruction assumes that, at the time of plaintiff's injuries, which it also assumes, he was 'assisting George Berkemeier in drilling a hole in some iron,' and tells the jury that, if in so doing 'he attempted to brush a steel shaving from a bit in the drill,' which resulted in his hand being caught, then to find for defendant. This is the same act which defendant had pleaded in its answer and which it says was 'careless negligent and unnecessary,' and as such defeated plaintiff's cause of action. In this instruction the word 'negligence' or its equivalent is carefully omitted, and the jury is not required to find that the act of attempting to brush the steel shaving from the drill was a negligent act or amounted to negligence, contributory or otherwise, under the circumstances, but was only required to find that plaintiff did...
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