Ossenberg v. Monsanto Chemical Works

• Decision Date: 03 February 1920
• Docket Number: No. 16681.,16681.
• Parties: OSSENBERG v. MONSANTO CHEMICAL WORKS.
• Court: Missouri Court of Appeals

218 S.W. 421

OSSENBERG v. MONSANTO CHEMICAL WORKS.

No. 16681.

St. Louis Court of Appeals. Missouri.

February 3, 1920.

Appeal from St. Louis Circuit Court; George H. Hitchcock, Judge.

"Not to be officially published."

Action by Harry Ossenberg against the Monsanto Chemical Works. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

H. F. Hecker and Jourdan, Rassieur & Pierce, all of St. Louis, for appellant.

Thomas O. Stokes and Blodgett & Rector, all of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while in defendant's employ as its servant, alleged to have been occasioned by defendant's negligence. Defendant is a manufacturer of chemicals; and at the time of plaintiff's injury he was in defendant's employ as a millwright's helper. On the day of his injury plaintiff was ordered by one Specht, defendant's superintendent, to drill a hole in one of the walls of a room in defendant's factory, at a point about 13 or 14 feet above the floor, for the purpose of installing a "hanger." Not far from this wall, and, it is said, about 17 inches below the point at which the hole was to be drilled, was situated a rapidly revolving shaft, parallel with the wall. According to testimony for defendant, this shaft was but 21 inches from the wall, but plaintiff's testimony is that it was about 2½ feet therefrom. About 9 feet above the floor, and about 3 feet lower than this shaft, there was a platform, consisting of iron grating laid across certain beams which entered the wall mentioned. This platform did not extend to the wall, but between it and the wall there was a space about 38 inches in width. The evidence shows that Specht, the superintendent, took plaintiff upon this platform and showed him the place where this hole was to be drilled into the wall; and the spot was marked either by Specht or by plaintiff at Specht's direction. It appears that this spot was about opposite a collar upon the revolving shaft, and because of this plaintiff, according to his testimony, suggested to Specht that the hole be drilled about 18 inches to the right of the spot marked, but Specht told him that the hole must be drilled and the hanger located at the place indicated, though Specht denies that plaintiff made this suggestion. Plaintiff further testified that he requested Specht to allow him to get a millwright, one Kramer, in defendant's employ, to drill this hole and put the hanger in place, but that Specht said that he was "short a millwright" and added: "I know you can put it there all right." Plaintiff thereupon procured a drill and a hammer and started to drill this hole. To perform the work he stood between the shaft and the wall, with the shaft behind him, upon a plank placed across the beams which extended from the above-mentioned platform to the wall. Plaintiff had made but two strokes with the hammer, as he testified, when his clothing came in contact with this collar upon the shaft, and he was caught and hurled about the shaft, whereby his clothing was torn from his body, and he was finally hurled upon the platform mentioned, sustaining serious injuries.

According to the testimony for plaintiff, there was a set screw protruding from this collar upon the shaft, but plaintiff was in ignorance of that fact, not having seen the shaft except while it was in rapid motion. And plaintiff's evidence tends to show that this protruding set screw caught his clothing and caused him to be hurled about the shaft and injured.

It is unnecessary to refer to the testimony for defendant further than to say that it tends to show that plaintiff's clothing was not caught and wound about this collar, but was caught upon the smooth shaft at a point where there was no collar or other projection upon it.

The petition charges that defendant negligently failed to cause the collar and set screw to be safely and securely guarded, by reason whereof plaintiff was injured, and charges that defendant, as master, negligently directed plaintiff to drill this hole near the revolving shaft, with the collar attached thereto, when defendant knew, or by the exercise of ordinary care could have known, that there was a protruding set screw on said collar "which could and should have been, by the exercise of ordinary care, countersunk," but by the negligence of defendant was not so countersunk, and that defendant directed plaintiff to perform the work aforesaid without warning of the danger arising from the protruding set screw, thereby causing plaintiff to be caught by the set screw and injured.

The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $5,495, and defendant has brought the case here by appeal.

I. It is argued for defendant, appellant here, that the trial court erred in refusing to peremptorily direct a verdict for the defendant. That the evidence, when viewed in the light most favorable to plaintiff, shows negligence on defendant's part, as master, cannot be doubted. See Schlavick v. Shoe Co., 157 Mo. App. 83, 137 S. W. 79. If plaintiff's evidence be accepted as true, defendant was guilty of a negligent breach of duty owing to plaintiff, as its servant, in putting him to work at a place which was unsafe by reason of the protruding set screw, without warning of the danger, when the defendant knew, or by the exercise of ordinary care could have known, that such dangerous condition existed.

It is contended, however, that the evidence conclusively shows that plaintiff was guilty of contributory negligence in taking a position between this shaft and the wall, with his back to the shaft, in order to do this work, when it might have been safely...