Nicholds v. Crystal Plate-Glass Co.

Decision Date19 June 1894
Citation27 S.W. 516
PartiesNICHOLDS v. CRYSTAL PLATE-GLASS CO.
CourtMissouri Supreme Court

1. Plaintiff was foreman of a blacksmith shop attached to a large manufacturing plant. He had to keep his own tools in repair, but there was a master mechanic having supervision of the machines and appliances. Plaintiff procured a crane to lift heavy weights at his forge, and, on the master mechanic's order, the machine-shop foreman gave him a chain that had been used for a sling chain. Plaintiff was not directed to inspect the chain. He used it 18 months, without noticing any defects, and then, in some especially heavy work, it broke, and plaintiff was hurt. The defect was one that would have been obvious to any competent inspection. Held, that whether plaintiff was charged with the duty of inspection, or should in reason have known of the defect, were questions for the jury.

2. Whether plaintiff was using the chain properly, it being conceded that the weight could have been raised on trusses, was a question for the jury.

3. A servant assumes no risk of a latent defect in a crane chain, not discoverable in the ordinary and proper use of the chain.

4. The bones of plaintiff's ankle were broken. He was kept in four weeks, used crutches five or six months, and then iron braces and a cork-soled shoe. He had been earning $75 to $90 a month, and lost eight months' time; then began at half pay; and at the time of trial was earning about as much as before. The strength of his leg was permanently impaired. He had had no expenses for medical attendance. Held, that he should be required to remit $3,666 of his verdict for $8,666.

5. The supreme court, having power to declare damages for personal injuries excessive, may also determine the amount of the excess, and allow plaintiff to remit such amount.

Barclay, J., dissenting.

Appeal from circuit court, Iron county; James D. Fox, Judge.

Action by James F. Nicholds against the Crystal Plate-Glass Company for damages for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed nisi rem. dam.

E. T. & C. B. Allen, for appellant. C. P. & J. D. Johnson, for respondent.

BLACK, C. J.

This is a personal damage suit, in which the plaintiff obtained a verdict and judgment, from which the defendant appealed. The principal alleged errors are: (1) There is no evidence of negligence on the part of the defendant. (2) The plaintiff was guilty of contributory negligence, and the court should have so declared as a matter of law. (3) The injury was caused by one of those risks which the plaintiff assumed. (4) Plaintiff ought not to recover, because he was defendant's vice principal. (5) Errors in giving and refusing to give instructions. (6) The damages are excessive.

The defendant is a corporation engaged in carrying on extensive glass works. In connection with the works, and as a part thereof, the defendant maintains a machine shop and a blacksmith shop. At and prior to the time of the accident in question, there were two forges in the blacksmith shop, — one in charge of Witchell, who had one helper; and the other in charge of the plaintiff, who had three and sometimes four helpers. The difficult jobs of work were sent to the plaintiff. It was his business to dress the pot tongs. They were heavy, and, it seems, he complained that he could not handle them. This was about 18 months before the accident now in question. He asked the then master mechanic to have an iron crane placed at his forge. The iron crane was not furnished; but the master mechanic directed the boss carpenter to erect a wooden one. After the crane had been erected, the plaintiff called on the master mechanic for a pair of chain blocks, who said he could not go to that expense. He at the same time told the plaintiff to go to Davis, foreman of the machine shop, and Davis would give him a chain. He saw Davis, who got a chain and sheave, and threw them down on the blacksmith-shop floor, saying to plaintiff: "Use that, that is what we have used for a sling chain." The chain was composed of some 20 or more links, and worked in the sheave, to which there was attached a hook and swivel. The hook was then attached to another apparatus, which extended up to the traveler on the top of the boom of the crane. The crane, thus rigged, was used for various kinds of work during the 18 months. On the day of the accident, Mr. Prentice, foreman of the machine shop, directed plaintiff to make some dies for the trip hammer out of a steel shaft, which was 5 inches in diameter and some 18 feet long. The plaintiff and his helpers rolled the shaft up to the forge, heated it, and cut it in two. They then began work on one-half, which was some six or eight feet long. One end rested in the chain before described, and the helpers carried the other end from the forge to the anvil. At the time of the accident, one end rested in the chain, and the other on the anvil. The plaintiff occupied a position about midway between the anvil and the chain, and was moving the shaft by the aid of a clamp, and at the same time gave the helpers directions where to apply their sledges. While in this position, one link of the chain broke, and the shaft fell upon the plaintiff's ankle, inflicting the injuries of which he complains. The substantial averments of the amended petition are that the chain broke because the links had become "fractured, corroded, and impaired in strength by use, exposure, and time," and, by reason thereof, the chain "was insufficient in strength for the purposes for which it was then and there being used;" that defendant knew, or by the exercise of ordinary care might have known, the "fractured, corroded, and impaired condition and insufficiency in strength of said link, but, nevertheless, negligently failed to remove or repair the same, or replace it with a safe and sound link." The answer denies negligence on the part of the defendant, and avers that plaintiff "was in charge and had full control over the workshop in which he worked, and all the tools and appliances thereof, including the crane and chain mentioned in said amended petition; that the plaintiff negligently selected the said chain and crane for use in the work he was employed, and negligently used the same; that such negligence of the plaintiff directly contributed to any injury sustained by him."

The evidence shows that the broken link had an old corroded crack in it at the place where it broke, extending more than half-way through the iron. Plaintiff testified that, when Davis gave him the chain, which was 18 months before the accident, it was in the sheave, was greasy, and had been used by the smoothers, the grinders, and polishers that it had been used in many places about the works, and was an old chain. He says the chain looked well enough to him, though he never examined it until after the accident; that he never received any orders from the master mechanic or from the foreman of the machine shop to inspect it; and that it was not his duty to inspect it, or any of the machines. He, however, did keep his own tools in repair. He says he did not know much about chains, but that this defect could have been easily detected by a competent inspector. His cross-examination tends strongly to show that he was as competent to inspect the chain as any one could be. Indeed, he says he thinks he would have thrown the whole chain away as unfit for use had he examined it just before the accident. He says, before swinging the 18-foot iron shaft around from the forge to the anvil to cut in two, he caused a bar to be placed from the forge to the anvil; that he did this because the shaft was so heavy, he was afraid the whole crane might give way; that this bar was not used after the shaft had been cut in two; that this was the heaviest piece of metal he had ever handled with the crane; and that he supposes trusses could have been used, instead of the crane. It appears from the testimony of the witnesses called by the defendant that cranes with chains were used in the casting hall, and that they were inspected by a man employed for that purpose, but it does not appear that this person ever inspected the crane in the blacksmith shop. The evidence of Prentice, foreman of the machine shop, is that he caused machinery to be repaired when reported to him as out of order; that he often gave plaintiff orders for work. Prentice occupied a position...

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8 cases
  • Antler v. Cox
    • United States
    • Idaho Supreme Court
    • 12 d6 Junho d6 1915
    ... ... have been decided by many courts not to be within the simple ... tool rule. (Nicholds v. Crystal Plate Glass Co ... (Mo.), 27 S.W. 516; Pennsylvania Ry. v ... Forstall, 159 F. 893, ... ...
  • Ed. Maloney v. Winston Bros. Company
    • United States
    • Idaho Supreme Court
    • 7 d3 Dezembro d3 1910
    ... ... 134, 135; Bosworth v. Standard Oil ... Co., 92 Hun 485, 37 N.Y.S. 43; Nicholds v. Crystal ... Plate Glass Co., 126 Mo. 55, 27 S.W. 516, 28 S.W. 991; ... Cogswell v. West St. & ... ...
  • On Rehearing
    • United States
    • Idaho Supreme Court
    • 7 d3 Dezembro d3 1910
    ... ... 134, 135; Bosworth v. Standard Oil ... Co., 92 Hun, 485, 37 N.Y.S. 43; Nicholds v. Crystal ... Plate Glass Co., 126 Mo. 55, 27 S.W. 516, 28 S.W. 991; ... Cogswell v. West St. & ... ...
  • Nicholds v. Crystal Plate Glass Company
    • United States
    • Missouri Supreme Court
    • 22 d6 Dezembro d6 1894
  • Request a trial to view additional results

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