Peppers v. St. Louis Plate Glass Co.

• Decision Date: 04 June 1912
• Citation: 148 S.W. 401,165 Mo. App. 556
• Parties: PEPPERS v. ST. LOUIS PLATE GLASS CO.
• Court: Missouri Court of Appeals

148 S.W. 401

165 Mo. App. 556

PEPPERS v. ST. LOUIS PLATE GLASS CO.

St. Louis Court of Appeals. Missouri.

June 4, 1912.

Rehearing Denied June 15, 1912.

1. MASTER AND SERVANT (§§ 134, 141)—DANGEROUS EMPLOYMENT—DUTY TO WARN.

A manufacturing company, which employed servants to work about immense tables, which were being shifted from one position to another to the possible danger of its servants working about the tables, owed them a duty to provide rules and means by which they would be warned in time to avoid the danger.

2. MASTER AND SERVANT (§ 289)—INJURY TO EMPLOYÉ—CONTRIBUTORY NEGLIGENCE.

Where an employé was injured while working beneath a heavy table, he was not guilty of contributory negligence as a matter of law in not taking precautions against being injured by a sudden moving of the table, unless he knew that the table was liable to be moved while he was working beneath it, even though he knew no provision had been made by the employer for warning his employés before tables were moved.

3. MASTER AND SERVANT (§ 265)—INJURY TO SERVANT—BURDEN OF PROOF—CONTRIBUTORY NEGLIGENCE.

In an employé's action for injuries from the unexpected moving of a table beneath which he was working, the burden was upon the employer to show contributory negligence; it being presumed that the employé was in the exercise of due care for his own safety.

4. TRIAL (§ 260)—INSTRUCTIONS.

In an employé's action for injuries, defendant's requested instructions upon contributory negligence were properly refused, when covered by the instructions given.

Reynolds, P. J., dissenting.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by William A. Peppers against the St. Louis Plate Glass Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by the plaintiff against the defendant to recover damages for personal injuries received by the plaintiff on account of the negligence of the defendant. The plaintiff had verdict and judgment for $7,000 and defendant has appealed. Plaintiff was injured by a "table" (which ran on wheels like a car) being moved while he, as an employé of the defendant, was adjusting a clamp underneath. The charges of negligence, made in the petition and submitted to the jury, consisted, first, in defendant's failure to adopt any rules and regulations for the control of motormen, so as to secure the safety of men working under the tables; second, in defendant's failure to provide any signal or sign that would indicate to the motorman that a man was under the table; third, in defendant's failure to leave a watchman by the table to warn the motorman that a man was under the table. The answer contained a general denial and pleas of contributory negligence and of assumption of risk. The reply was a general denial.

The day plaintiff was injured, April 12, 1907, the defendant corporation operated a large glass manufacturing plant at Valley Park, Mo. The grinding and polishing room was 595 feet long from east to west and 135 feet wide from north to south. In this great room six large engines, with shafting, operated eight grinding and eight polishing machines —the grinding being done toward the western part of the room; the polishing more toward the eastern part. A large number of men were employed in this room. In order to be ground and polished the rough glass was laid (with cement or plaster of paris to hold it in place) upon circular "tables" 25 feet in diameter which rested on trucks and car wheels which ran on tracks with steel rails. The rails, there being two to each track, were 12 feet apart, so that the flat tops of the tables projected out several feet over each rail. The tables were low, the tops not quite reaching to a man's waist line. In the room were 31 such tables and 11 tracks on which they ran. These tracks ran north and south and parallel to each other. When the glass on a table was being ground the table stood on a track by a grinding machine. When the grinding was complete the table was moved to another track next to a polishing machine. When the polishing was complete the table was moved to another track in a part of the room called the "stripping yard," which was in the extreme eastern end of the room, and there the table was "stripped"; that is, the glass was removed from it. When a table was "stripped" it was, when needed, again moved back onto a track by a grinding machine to go through the same process as before.

The manner or means of moving the tables from track to track as aforesaid was as follows: East and west, the long way of the room, across all the 11 tracks at right angles, was a depressed track. Along this depressed track ran two "transfer cars" operated by electricity, upon each of which were laid two rails, which ran in the same direction and were the same distance apart as the table track rails and were on a level therewith. A motorman stood on a little platform at one end of the transfer car and operated it by means of a controller and a lever. When a table was to be moved from one track to another, a transfer car was run down the depressed track to a point opposite the end of the track on which the table stood, and stopped so that the ends of the rails on the transfer car exactly fitted to the ends of the rails of the table track. A man on the transfer car, called a "rope puller," stepped off the transfer car carrying the end of a rope with a hook attached; the other end being fastened to a spool operated by electricity on the transfer car. He attached the hook to a ring in the end of the table, whereupon the motorman, by starting the spool to revolving and winding the rope upon it, pulled the table onto the transfer car. Then the motorman ran the transfer car with the table on it down to a point opposite the track on which it was desired to place the table, and the table was pulled off the transfer car onto such table track. This moving and shifting of tables from one track to another by means of transfer cars was almost constantly going on. When the men at the grinders or polishers wanted a table taken away or a new one brought they would so indicate by blowing a whistle, whereupon the men on the transfer car would go and get the table and take it away or bring a cleaned one from the "stripping yard" as the case might be. This whistle blowing did not indicate what particular table was to be brought. That was to be determined solely by the transfer men themselves. It was the invariable custom for those on the transfer car to take from the "stripping yard" only tables which had been entirely "stripped"; that is, tables from which all glass had been removed, as, of course, no others were available for the use they were necessarily to be put. The sole test of whether a table was to be moved was its having been "stripped," to be determined by looking at the surface of the table. Each transfer car was provided with a gong to be rung as a warning to clear the way as it went to and fro along the depressed track carrying a table wider than itself. There were two tracks in the "stripping yard" on which tables rested while the glass was being taken off or awaiting or following that event.

The engines, grinders, polishers and other machinery, as well as the men at their work, combined to make a great noise which pervaded the entire room and was described by defendant's foreman as a roar. This noise was especially great at the "stripping yard." Plaintiff began to work for the defendant 10 days before he was injured. He was unfamiliar with machinery and with glass manufacturing, never having been in a glass factory before. He so informed defendant's foreman at the time of his hiring. The foreman assigned him to miscellaneous common labor. One whole day he acted as a "rope puller," and on cross-examination he testified that while so acting he had taken no precautions to ascertain whether any one was under a table about to be "pulled," or to warn such a one, and that he had received no instructions to take any such precautions or to give any such warning, neither had he observed any signals indicating the presence of any one under any table. On other days he worked as helper at divers tasks in the grinding and polishing room, having opportunity to observe the transfer cars and their operations. It does not appear that any person other than the plaintiff went under any table while he was in the employ of defendant. Three days before plaintiff was injured the foreman assigned him to work in the "stripping yard," adjusting or replacing certain clamps on the under side of all the tables, and of greasing the wheels, telling him to keep at this work until otherwise ordered. This was a work which had to be done from time to time in the course of defendant's business. The foreman gave him no instructions or information as to rules or regulations, but crawled under the first table with him to show him how to do the work.

As we have already mentioned, the tables were 25 feet in diameter and only about 3½ feet high. As the rails were only 12 feet apart, and the table top circular, the latter projected out several feet beyond the wheels and trucks. The clamps were underneath between the rails and inside the space formed by the trucks and wheels. In order to fix them the plaintiff was compelled to get down and crawl in under and sit on the ground humped over. On April 12, 1907, between 8 and 9 o'clock in the morning, plaintiff had finished with one table and was about to start on another, located, like all he had worked on, in the "stripping yard." He knew that it was the custom to move tables when they were "stripped" and not before. Before crawling under this second table, plaintiff noticed that it was still "unstripped" and that no one was "stripping" it or seemed to be about to do so. He crawled under and sat humped over between the tracks and wheels. It would take 25 minutes to finish that table. While he was so engaged men came...