Ostopshook v. Cohen-Schwartz Rail & Steel Co.

• Decision Date: 08 February 1921
• Docket Number: No. 16318.,16318.
• Citation: 227 S.W. 642
• Court: Missouri Court of Appeals
• Parties: OSTOPSHOOK v. COHEN-SCHWARTZ RAIL & STEEL CO.

227 S.W. 642

OSTOPSHOOK v. COHEN-SCHWARTZ RAIL & STEEL CO.

No. 16318.

St. Louis Court of Appeals. Missouri.

February 8, 1921.

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

"Not to be officially published."

Action by Sam Ostopshook against the Cohen-Schwartz Rail & Steel Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Kelley & Starke and Charles E. Morrow, all of St. Louis, for appellant.

Hall & Dame, of St. Louis, for respondent.

BIGGS, C.

Defendant appeals from a judgment against it in a personal injury case arising out of the relation of master and servant.

On September 6, 1916, plaintiff, while in the employ of defendant and operating a shearing machine used to cut scrap iron into small pieces, was seriously injured by a sliver of steel breaking from the knife blade of the machine and striking and penetrating plaintiff's chest and lung. A number of acts of negligence are charged in the petition.

Defendant does not complain here that its demurrer to the evidence should have been sustained, but asserts that it was error to submit the cause to the jury on one of the acts of negligence charged, and which was coupled with other separate acts in the same instruction, on the ground that there was no evidence produced on which to base the instruction as to the particular act of negligence.

It was charged in the petition that —

"The said knife or cutting or shearing part of said machine was of defective material and defectively made and repaired, in that the metal thereof was tempered too hard or dry and was too brittle for reasonably safe use, and the said knife was too small and too narrow to fill its proper place."

The instruction complained against and which covered separate acts of negligence and authorized a verdict is as follows:

"The court instructs the jury that, if you find and believe from the evidence that on or about the 6th day of September, 1916, the plaintiff was in the employ of the defendant and under the orders and directions of the defendant was engaged in operating or using a certain shearing machine of the defendant at its plant at 23 Branch street in the city of St. Louis, Mo., and that while plaintiff was so engaged at said time and place a piece or sliver of steel was cast from the said shearing machine while same was in operation, and penetrated plaintiff's body and breast, and injured him, and if you further find and believe from the evidence that the defendant negligently furnished plaintiff for his use a shearing machine which was defective and not reasonably safe for the work which plaintiff was directed and required to do by use of it, that the said machine was defective in at least one of the following particulars: That the joint bearings or pivotal parts of said machine were worn and loose and allowed the cutting blades to spread apart laterally; that the upper knife and jaw of said machine were loose, and fit and worked loosely and irregularly in said machine; that the knife or shearing part of said machine was tempered too hard and was too brittle for reasonably safe use; and that the said knife did not fill out and fit up closely to the other knife when in operation — and if you further find that such defects, if any, were known to the defendant, or by the use of ordinary care would have been known to the defendant in time by the use of ordinary care to have removed said defects or plaintiff from operating said machine before plaintiff was injured, and prevented plaintiff's said injuries, and if you find that the negligence of defendant in so furnishing plaintiff for his use a defective shearing machine (if you find defendant was negligent in such manner) directly caused plaintiff to be struck by said piece or sliver of steel and injured, and if you find that at the time and place aforesaid plaintiff was exercising ordinary care for his own safety, then your verdict shall be for the plaintiff."

It will be noted this instruction permitted a recovery by plaintiff if the jury believed that defendant was guilty of any one of the several acts of negligence referred to therein. The ground of defendant's objection is to the effect that there is no evidence in the record that the knife on shearing part of said machine was tempered too hard and was too brittle for reasonably safe use.

The instruction submitting a cause to the jury must not be broader than the proof and the pleadings, and must be within both. An instruction which submits an issue to the jury, which issue is pleaded, though not proven, is erroneous. Riley v. City of Independence, 258 Mo. 671, loc. cit. 683, 684, 167 S. W. 1022, Ann. Cas. 1915D, 748; State ex rel. v. Ellison, 270 Mo. 645, loc. cit. 653, 195 S. W. 722; Sparkman v. Railroad, 191 Mo. App. 463, loc. cit. 469, 177 S. W. 703.

We have in vain searched the record for direct evidence supporting the charge, or evidence from which the jury might reasonably Infer, that the shearing part of the machine was tempered too hard and was too brittle for reasonably safe use. As submitted by plaintiff's counsel, the only testimony that refers to the tempering of the knives was given by plaintiff and one of defendant's witnesses. Plaintiff testified:

"Any time when the mechanic comes to fix the machine he started to explain to the mechanic the machine is not in good condition. I never tried to fix the machine myself. These knives is apart so any time they can change them. The blacksmith repaired the knives. The blacksmith man took the knives to the shop and fixed them over there and...