Pelster v. Shamrod Boiler Co.

• Decision Date: 01 December 1924
• Docket Number: No. 15137.,15137.
• Citation: 268 S.W. 890
• Parties: PELSTER v. SHAMROD BOILER CO.
• Court: Missouri Court of Appeals

268 S.W. 890

PELSTER v. SHAMROD BOILER CO.

No. 15137.

Kansas City Court of Appeals. Missouri.

December 1, 1924.

Rehearing Denied December 29, 1924.

Certiorari Denied February 18, 1925.

Appeal from Circuit Court, Buchanan County; Lawrence A. Vories, Judge. "Not to be officially published."

Action by Jacob E. Pelster against the Shamrod Boiler Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Waldo P. Goff and Ryan & Zwick, all of St. Joseph, for appellant.

Mytton & Parkinson and Sam Wilcox, all of St. Joseph, for respondent.

TRIMBLE, P. J.

Plaintiff, an employé in defendant's boiler factory, was engaged in driving out a "driftpin" with a sledge hammer when a steel sliver struck him in the left eye, severely wounding it, from which infection set in, necessitating the removing of the eyeball and the use of an artificial eye thereafter.

The present suit was brought to recover damages on account of said injury, based upon the charge that the defendant negligently furnished plaintiff a hammer that was defective and dangerous, and not reasonably safe for the purpose for which it was used, by reason of the fact that the head or face thereof was old, battered, worn, broken, rough, and uneven, so that chips or parts thereof were likely to fly therefrom when striking the pin required to be driven, which defective condition defendant knew or by the exercise of reasonable care should have known; and that, while using said sledge hammer, a piece of steel from the head thereof flew into plaintiff's eye and caused the loss thereof as above stated.

The jury returned a verdict in plaintiff's favor for $6,000, and defendant, after unsuccessfully seeking to get a new trial, duly appealed.

The evidence in plaintiff's behalf tends to show the following: That plaintiff was an experienced boiler maker, and, with a helper named Kopiski, was engaged in rivetting together the steel sides of a steam-shovel bucket It seems that, where the holes in the to be rivetted coincide so exactly that the rivet could be easily inserted, plaintiff used an air hammer or rivetter; but at such as did not precisely coincide the course to be pursued was to insert a tapering driftpin and drive the same into the hole with force so that as the pin went in it would either bring them together or would enlarge the holes, superimposed one upon the other, in such manner that a rivet could be fitted into such hole thus prepared; and that, after having thus driven the pin in far enough to make the holes coincide, the pin would be driven back out by heavy blows from the hammer on the pin on the other side

Plaintiff had driven the driftpin in, and was engaged in driving it back out when a steel sliver flew out with great force, striking plaintiff in the eye, causing the loss there of as heretofore stated. Upon being struck in the eye, plaintiff says he threw his hand up to his eye, and then a moment later looked at the pin (which was a new one), and, seeing that nothing was wrong with it, he looked at the hammer, and saw a place at the edge or side of the head where a silver "kind of arrowshaped," about three-six-teenths of an inch long and one-eighth of an inch wide, was broken out of it.

After an unsuccessful effort on the part of a workman to see what was in the eye, plaintiff was told to go to the doctor to whom the foreman or superintendent telephoned, and walked from the factory to the doctor's office, where the latter attempted to extract the sliver from the eye by using a magnet but without success. Infection setting up the next day or so, the doctor removed the eye, and found the sliver, as heretofore described, embedded therein. He gave it to plaintiff's wife, and she afterwards showed it plaintiff, who said it corresponded in size and shape to the broken place on the head of the hammer he had seen the moment after he was struck. In some way the piece extracted from the eye was misplaced or lost and was not in evidence at the trial.

The hammer was one of several (plaintiff says four in number) kept in the tool room for use as above indicated.

It is urged that defendant's demurrer to the evidence should have been sustained: (1) Because the evidence as to the selection of the hammer, its use, and effects, and the cause of the injury, is so unreasonable, incredible, and contradictory to the physical facts as to be unbelievable; (2) because plaintiff had the selection of the hammer he would use, and in selecting the one he did use he was guilty of contributory negligence as a matter of law; (3) that the work plaintiff was doing was dangerous because of the liability of particles to fly off and injure his eyes, and he was guilty of contributory negligence in failing to use goggles which defendant claims were supplied and kept on hand for use.

The first above named ground of the demurrer appears to be based upon two things: (a) The inherent improbability of plaintiff looking at the pin and the head of the hammer immediately after being struck such a painful blow in the eye, or, if he did look, the impossibility of his being able to see anything with the other eye when his wounded eye was in the condition it was in; and (b) the fact that he did not tell any one where the piece of metal came from until after he had decided to bring suit, and admits that shortly after the injury, and before his eye was removed, he told Mr. Shamrod that he had a piece of metal in his eye, but did not know where it came from.

Not only plaintiff, but also the helper Kopiski who was present, testified that plaintiff looked at the hammer after he was struck and then dropped it. It is true Kopiski gave it as his opinion that, on account of plaintiff's injury, `I don't see how he could see anything." But clearly his opinion the matter could not conclusively bind or settle the matter nor could we say, as a mater of law, that a person suffering an injury in...