Nicholds v. Crystal Plate Glass Co.

• Decision Date: 22 December 1894
• Citation: 126 Mo. 55,28 S.W. 991
• Parties: NICHOLDS v. CRYSTAL PLATE GLASS CO.
• Court: Missouri Supreme Court

28 S.W. 991

126 Mo. 55

NICHOLDS v. CRYSTAL PLATE GLASS CO.

Supreme Court of Missouri.

December 22, 1894.

INJURY TO EMPLOYE — DEFECTIVE APPLIANCES — NEGLIGENCE — EVIDENCE — EXCESSIVE VERDICT.

1. Plaintiff, a foreman of defendant's blacksmith shop, was supplied by the foreman of defendant's machine shop, in compliance with the master mechanic's directions, with a crane to which was attached an endless chain, through the loop of which one end of heavy bars was placed while being hammered on an anvil. While plaintiff was holding a heavy bar in place on the anvil a defective link in the chain broke, and the bar fell on his ankle. Held, that it appearing that the chain when furnished was defective, and that the defect could not have been discovered by using the chain, but could have been discovered by an examination by a competent person, and it appearing, further, that no such examination was ever made, and that it was not plaintiff's duty to inspect the chain, defendant was liable.

2. Whether plaintiff was bound to look for defects other than those open to his observation while in the prudent use of the appliances furnished, and whether plaintiff was negligent in attempting to handle a large shaft of iron by the use of the crane, and in standing close to the shaft when it fell, were questions of fact to be decided by the jury.

3. A foreman of a blacksmith shop does not assume risks arising from the failure of the master to use reasonable care in providing and keeping in repair the appliances furnished for use in the shop.

4. The fact that a foreman of a blacksmith shop had charge of various jobs of work, and had control of his helpers, will not prevent him from recovering for injuries sustained by reason of defective appliances provided for use, in the absence of proof that it was his duty to keep the appliances in repair.

5. Plaintiff testified that the bones of his ankle were broken; that he was confined to his house three weeks, and after that used crutches for five months, and at the time of the trial was using iron braces and a cork-bottom shoe; that at the time of the accident he was earning $75 to $90 per month; that he lost seven months' time, at the expiration of which time he at first earned $30 per month, while at the time of the trial he was earning from $2.70 to $3 per day. It appeared that the strength of plaintiff's leg was permanently impaired, but that he had not lost the use of it; that his earning capacity was unimpaired; and that no medical expenses were incurred. Held, that a verdict of $8,666 should be reduced to $5,000. Barclay, Gantt, and Sherwood, JJ., dissenting.

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

Action by James F. Nicholds against the Crystal Plate Glass Company. From a judgment for plaintiff, defendant appeals. Modified.

The following is the opinion of the court of Division No. 1 (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 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 sheaves, and threw them down on the blacksmith shop floor, saying to plaintiff, `Use that; that it is what we have used for a sliding 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, 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 6 or 8 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 sheaves, 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 machinery. 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...