Nelson v. C. Heinz Stove Co.

• Decision Date: 03 July 1928
• Docket Number: No. 26732.,26732.
• Citation: 8 S.W.2d 918
• Parties: LEO NELSON, Appellant, v. C. HEINZ STOVE COMPANY.
• Court: Missouri Supreme Court

8 S.W.2d 918

LEO NELSON, Appellant, v. C. HEINZ STOVE COMPANY.

No. 26732.

Supreme Court of Missouri, Division One.

July 3, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Edwin G. Ossing, Judge.

AFFIRMED.

Everett J. Hulleerson, Mark D. Eagleton and James A. Waechter for appellant.

(1) The giving of Instruction 3 constituted reversible error, because (a) Since the res ipsa loquitur doctrine applied, a presumption of negligence arose, and it was improper to instruct the jury (as set forth in the first paragraph of said instruction) that the "burden of proof" was on the plaintiff. Blanton v. Dold, 109 Mo. 64; Eckhardt v. Mfg. Co., 235 S.W. 117; Lowe v. Dyeing Co., 274 S.W. 857; Ware v. Machine Co., 273 S.W. 227; Ferguson v. Fulton Iron Works, 259 S.W. 811; Taul v. Saddlery Co., 229 S.W. 420; Ash v. Printing Co., 199 S.W. 994; State v. Allen, 289 S.W. 583; Anderson v. Door Co., 182 S.W. 819. (b) And if the defendant does not, by adequate evidence, show the real cause of the unusual happening, and that it was not negligent, the presumption of negligence is conclusive, and the jury cannot be instructed to find otherwise. Mayne v. Rys. Co., 287 Mo. 235; Kuether v. Power Co., 276 S.W. 105. (c) Defendant's instruction "casting the burden of proof upon the plaintiff" destroys every vestige of the doctrine of presumptive negligence. Carlson v. Wells, 276 S.W. 29. See, also: Burns v. Railways, 176 Mo. App. 330; Bloom v. Power Co., 251 S.W. 411; Tierney v. Rys. Co., 185 Mo. App. 720; Craig v. United Rys. Co., 185 S.W. 205; Nagel v. Rys. Co., 169 Mo. App. 284; Gannon v. Laclede Gas Co., 145 Mo. 502; McDonald v. Rys. Co., 219 Mo. 468. (d) The second paragraph of this instruction, to the effect that the burden of proof and preponderance of evidence has no relation to the number of witnesses testifying concerning any fact, has been condemned by this court. Peppers v. Ry. Co., 295 S.W. 761. (2) The giving of Instruction 4 constituted fatal error, because it ignores the doctrine of presumptive negligence. Bloom v. Union E.L. & P. Co., 251 S.W. 414; Nagel v. Rys. Co., 169 Mo. App. 284; Gannon v. Laclede Gas Co., 145 Mo. 502. (3) The giving of Instruction 5 was error, because it improperly injects "assumption of risk" in the case, which was unwarranted. However, even if warranted, it is not a correct pronouncement of the doctrine of "assumption of risk." Bagby v. Culberson, 273 S.W. 213; Williams v. Pryor, 272 Mo. 621; Patrum v. Railroad, 259 Mo. 124; Fish v. Railway, 263 Mo. 125; Charlton v. Railroad, 200 Mo. 433; George v. Railroad, 225 Mo. 407; Curtis v. McNair, 173 Mo. 270; Doody v. Woolen Mills, 216 S.W. 534; Dietzman v. Screw Co., 254 S.W. 64; Soltesz v. Prov. Co., 260 S.W. 993. (4) It was error to give Instruction 6, because it was an "accident" instruction, and there was no basis for it in the case. Craig v. United Rys. Co., 185 S.W. 207; Lamar v. Morton Salt Co., 242 S.W. 690; Zeis v. Brewing Assn., 205 Mo. 650; Crowell v. St. Louis Screw Co., 293 S.W. 521. (5) The giving of all of defendant's instructions, when construed together, should be condemned, because they were unduly argumentative, unduly emphasized facts not in issue, destroyed completely the presumption of negligence, and were confusing, conflicting and misleading. Owens v. Rys. Co., 95 Mo. 181; Orcutt v. Bldg. Co., 214 Mo. 35; Hurley v. Railroad Co., 282 S.W. 100; Kuhlman v. Water, L. & P. Co., 307 Mo. 607; Landon v. U. Rys. Co., 237 S.W. 497.

Banister, Leonard, Sibley & McRoberts and Frank P. Aschemeyer for respondent.

(1) Instruction 3 was proper in form and was rightfully given, because: (a) The burden of proving those facts necessary to make out a prima-facie case was on the plaintiff throughout the trial. Bond v. Ry. Co., 288 S.W. 777; Orcutt v. Century Building Co., 214 Mo. 35; Stofer v. Dunham, 208 S.W. 641. (b) The plaintiff wholly failed to submit any instruction defining his theory of his right to recover. Such practice has been repeatedly condemned by our courts. Wingfield v. Railroad, 257 Mo. 347; Powell v. Railroad, 255 Mo. 457; Roemer v. Wells, 257 S.W. 1056; Conley v. Mo. Pac. Ry. Co., 253 S.W. 424; Keppler v. Wells, 238 S.W. 425. This instruction would have been entirely consistent with a proper instruction on the merits, had one been given. Uhl v. Century Electric Co., 295 S.W. 127. If counsel was fearful that the jury might be misled by the language used in defendant's legally proper instruction, he should have asked an instruction defining his own theory of law on the subject. Maloney v. United Rys. Co., 237 S.W. 509. (c) The second paragraph of this instruction, to the effect that the burden of proof and preponderance of the evidence has no relation to the number of witnesses testifying concerning any fact, if error, is harmful to the respondent. In any event, it is not reversible error. Peppers v. Ry. Co., 295 S.W. 761; Wright v. Cobb, 229 S.W. 171; Neal v. Crawson, 231 S.W. 1033. (2) Instruction 4 is within the issues made by the pleadings and the evidence and in no respects casts an improper burden upon the plaintiff. Muehlbach v. Muehlbach Brewing Co., 242 S.W. 175. The presumption of negligence arising from plaintiff's prima-facie case is not conclusive, and to so hold would destroy the settled principle of law, that a master is not an insurer of the safety of his servants. Van Bibber v. Swift & Co., 286 Mo. 317; Spindler v. Express Co., 232 S.W. 690; Yarbrough v. Packing Co., 231 S.W. 72; Russell v. Ry. Co., 245 S.W. 590; Ryan v. Lea, 249 S.W. 685. (3) Instruction 5 is within the issues and is proper, because: (a) If an injury result from one of the natural and ordinary hazards incident to the business, the servant has no cause of action against his master. Reichert v. Packing Co., 136 Mo. App. 565; Henry v. Railway, 109 Mo. 488; Musick v. Dold, 58 Mo. App. 322: Lucey v. Oil Co., 129 Mo. 32; Thompson v. Railway, 86 Mo. App. 141: Minnier v. Railway, 167 Mo. 99. (b) The instruction is essentially proper and is favorable to the plaintiff. Reickert v. Packing Co., 136 Mo. App. 565; West v. Holladay, 196 S.W. 403; Denkman v. Prudential Fixture Co., 289 S.W. 591. A master is not an insurer of the safety of his employees and is only required to exercise reasonable care to furnish the servant a reasonably safe place to work and reasonably safe appliances. Cases, supra. (4) Instruction 6 is not an "accident" instruction, but is a proper statement of a fundamental principle in the law of negligence, i.e., a person is not required to anticipate or guard against an occurrence which an ordinarily prudent and careful person could not have reasonably anticipated. Rueter v. Terminal Railroad, 261 S.W. 713; American Brewing Assn. v. Talbot, 141 Mo. 674; State ex rel. Lusk v. Ellison, 271 Mo. 463; Ray, Negligence of Imposed Duties, pp. 133-134; Webb's Pollack on Torts (Enlarged Am. Ed.) 45-46; 20 R.C.L. sec. 9, p. 13. (5) Defendant's instructions, taken together, are a correct statement of the law as applied to the issues of the case and appellant has no substantial ground for complaint. State ex rel. Larson v. Mathieson, 261 S.W. 335; Hely v. Hinderman, 208 Mo. App. 691; Wiederman v. Taxicab Co., 182 Mo. App. 530; Clark v. Engineering Co., 263 S.W. 500; Merton v. Coffin Co., 232 S.W. 201.

ATWOOD, J.

Appellant, Leo Nelson, while an employee of the C. Heinz Stove Company, respondent, and operating a No. 73 Swain power press, sustained injuries to both hands. In an action for damages the jury returned a verdict for defendant, upon which judgment was entered, and plaintiff thereupon appealed, assigning error in the giving of instructions.

The record discloses that the power press was about five or six feet high, three or four feet wide, and about three feet in depth. It functioned by means of two dies, a lower die being at rest in the bed of the machine, and an upper die which ascended and descended. The material to be pressed was placed over the lower die and the machine then being put in operation the upper die descended and the material was pressed between the two dies. The power for the operation of the press was transmitted from a line shaft by means of a belt to a pulley which was placed on a shaft at the upper right hand portion of the press. The power was applied and released by means of a clutch that operated upon the application of a foot pedal at the lower right portion of the machine. On either side of the bed of the press there was a button, and in order to put the press in operation it was necessary for the operator, who stood in front of the press, to press both of these buttons, one with the left hand and the other with the right, and then press down the foot lever at the lower right side of the press, which, after application, engaged the clutch and set the upper die in motion. The foot lever could not be pressed and the clutch engaged until both of these buttons had been pressed, but after the clutch lever had been released by application of the buttons and the clutch had been engaged by a pressure upon the foot lever, the upper die continued in operation as long as the operator held his foot on the pedal. The buttons were in the nature of a safety device, and were placed on the machine for the purpose of safeguarding the operator, it being obvious that since the operator had to use both hands in pressing the buttons before the machine could be put in operation it was impossible for him to have them in a position of danger when the upper die descended. The plaintiff testified that the foreman instructed him how to operate the machine, and explained the purpose of the safety buttons. He also said that he had operated this type of machine before and knew how it worked.

Plaintiff's petition alleged "that while plaintiff was so engaged in working with and using said machine, in the normal and usual manner, with the aforesaid die motionless and at rest, the said upper die did then and there suddenly,...