Peters v. Gille Manufacturing Company

• Decision Date: 05 October 1908
• Citation: 113 S.W. 706,133 Mo.App. 412
• Parties: LEO P. PETERS, a minor, Respondent, v. GILLE MANUFACTURING COMPANY, Appellants
• Court: Kansas Court of Appeals

113 S.W. 706

133 Mo.App. 412

LEO P. PETERS, a minor, Respondent, v. GILLE MANUFACTURING COMPANY, Appellants

Court of Appeals of Missouri, Kansas City

October 5, 1908

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

Judgment affirmed.

Warner Dean, McLeod & Timmonds and O. C. Mosman for appellants.

(1) The petition does not state a cause of action at common law, nor does it state facts sufficient to bring it clearly within the statute. Case v. Cordell Zinc Co., 103 Mo.App. 477; Barker v. Railroad, 91 Mo. 86; Barron v. Lead & Zinc Co., 172 Mo. 228; Hewitt v. Harvey, 46 Mo 368; Pitt v. Daniel, 82 Mo.App. 168; Russell v Railroad, 83 Mo. 507; Culshall v. McGowan, 98 Mo.App. 705. (2) The court erred in overruling defendants' demurrer to plaintiff's evidence. Strode v. Columbia Box Co., 124 Mo.App. 511; Meifert v. Sand Co., 124 Mo.App. 491; Dillon v. Coal Tar Co., 181 N.Y. 215, 73 N.E. 978; Cement Co. v. Insurance Co., 162 N.Y. 399, 56 N.E. 897; Byrne v. Carpet Co., 61 N.Y.S. 741; Powalske v. Brick Co., 110 Wis. 461, 86 N.W. 153; Scialo v. Steffens, 94 N.Y.S. 305. (3) Instruction 1P. given on behalf of plaintiff was erroneous. (4) The court erred in overruling defendants' instruction 4B.

R. J. Holmden and D. C. Finley for respondent.

(1) The petition does state facts sufficient to constitute a cause of action. Brower v. Locke, 31 Ind.App. 353; Kennayde v. Railroad, 45 Mo. 258; Lore v. Mfg. Co., 160 Mo. 621; Land Co. v. Tie Co., 79 Mo.App. 546; Blair v. Heibel, 103 Mo.App. 633; Renshaw v. Lloyd, 50 Mo. 368; Camp v. Railroad, 94 Mo.App. 281; Pitt v. Daniel, 82 Mo.App. 171. (2) The court did not err in overruling defendants' demurrer to plaintiff's evidence. Blanton v. Dold, 109 Mo. 64; Oglesby v. Railroad, 177 Mo. 272, 325; Adolff v. Pretzel Co., 100 Mo.App. 211; Raney v. Lachance, 96 Mo.App. 484; Taleman v. Rock Island, 96 Mo.App. 453; Milsap v. Beggs, 122 Mo.App. 1; Lore v. Manufacturing Co., 160 Mo. 608; Blair v. Heibel, 103 Mo.App. 621; Stafford v. Adams, 113 Mo.App. 717; Henderson v. Kansas City, 177 Mo. 477. (3) Instruction 1P. given on behalf of plaintiff was not erroneous. (4) The court did not err in overruling defendants' instruction 4B. Nairn v. Biscuit Co., 120 Mo.App. 144; Blanton v. Dold, 109 Mo. 64.

OPINION

BROADDUS, P. J.

An action for damages. Plaintiff's petition contains three counts. The court sustained demurrers to plaintiff's evidence on the first and second count, and the cause was tried on the third count, on which plaintiff recovered judgment and the defendants appealed.

The plaintiff was a minor seventeen years of age. The defendants were engaged as a manufacturing company in the sheet metal and tinware business in Kansas City. The plaintiff while engaged in working about a certain machine in February, 1907, was injured in his hand. A description of the machine given by the defendants is admitted to be correct, which is as follows:

"The machine in question was known as a stamp press machine. It consisted of a heavy framework of iron. The upper part of the machine could be moved on supports which rested on the floor and thus the machine could be used either in an upright position or in an inclined position. . . . There was a flywheel at one side of the machine which when connected with a belt and thrown in gear, caused it to operate.

"There was a face plate or bed about two and onehalf feet from the floor, on which the counter part of the die was fastened. The die was fastened to a plunger which operated by a connection on the shaft to which the flywheel was attached. Near the floor between the legs or supports of the machine was a pedal and attached to the end of the pedal was a rod which connected with a clutch in the inside hub of the flywheel. By pressing the pedal, the clutch was released and the machine thrown in action, the plunger and the die descending upon the counter die regularly with every revolution of the flywheel. This operation continued as long as the pedal was held down. When it was released, the plunger ceased to act and, if the pedal was pressed down and immediately released, the die descended but once. There were dies of various shapes and sizes that could be used on the machine."

The following statement, made by the defendants, is also admitted to be practically correct:

"For ten days, the plaintiff had been cutting small roofing caps out of pieces of scrap tin. He was perfectly familiar with the work of operating the machine and considered himself to be an expert operator. At the time of the accident he had cut all the caps possible out of the piece of tin and the remaining tin which he held in his hand and which he intended to cast aside had become entangled in the gauge attached near the lower or counter part of the die. He attempted to remove this, but, being unsuccessful, left his position in front of the machine and went to one side. The machine was at rest. In trying to remove the tin he placed his hands directly under the upper die and, for some unexplained reason, the upper die descended and cut off one of his fingers. The plaintiff claims that the machine had operated once before in this way without any pressure upon the pedal and some three minutes after he had ceased to operate it, but he made no complaint nor did he inform any one of this fact. Once before the plunger had refused to operate and, on complaint, the trouble was located and remedied. In the operation of cutting these caps, the plaintiff sat on a stool in front of the machine. His body was about six inches from the face plate which came up to his waist. The die was six inches back from the front edge of the face plate. In cutting out these caps it was not necessary for him to place his hands under the die, which was about one inch in diameter. He never had so placed his hands before and was always careful to keep them out from under the die, as he knew the danger if the upper die descended while his hands were in that position. The method of operating the machine was to hold one end of the tin in his hands and to push the other end over the counter die. He would then press the pedal with his foot and immediately remove his foot from the pedal. The machine would thus make but a single operation or cut."

The count of the petition on which the case was tried was based upon a violation of section 6434, Revised Statutes 1899, which reads as follows:

"No minor or woman shall be required to clean any part of a mill, gearing or machinery in any such establishment in this State, while the same is in motion, or work between the fixed or traversing parts of any machine, while it is in motion by the action of steam, water or other mechanical power." The words, "such establishment," refer to establishments described in section 6433, idem.

The petition, after describing the machine and the manner in which the injury was inflicted, alleges as follows: "That plaintiff was injured without fault or negligence on his part, but said injury was wholly caused by the negligence and want of care of defendants in this, that defendant carelessly and negligently employed plaintiff, a minor, to work and operate said machinery contrary to section 6434, Revised Statutes of Missouri 1899." The defendants' chief contention is that under the pleadings and evidence the plaintiff was not entitled to recover. The question raised by the appeal involves the construction of the section in question. This section seems to us to be somewhat ambiguous.

If the interpretation adopted by the plaintiff be correct, it is unlawful to employ women and minors in such establishments where there is stationary or traversing machinery. But we do not think such a construction is sound....