Piorkowski v. A. Leschen & Sons Rope Co.
| Decision Date | 04 May 1915 |
| Citation | 176 S.W. 258,190 Mo.App. 597 |
| Parties | JOSEPH PIORKOWSKI, Respondent, v. A. LESCHEN & SONS ROPE CO., Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
REVERSED AND REMANDED (with directions).
Order reversed and cause remanded.
Watts Gentry & Lee and John F. Gillespie for appellant.
(1) It is not negligence for a master to order a servant to do certain work or quit the employment of the master. Pulley v. Standard Oil Co., 136 Mo.App. 175. (2) (a) There is no evidence that plaintiff did not understand the danger. (b) The danger was open and obvious, hence instructions were unnecessary and would have been useless. Nugent v Milling Co., 131 Mo. 241; Hirsch v. Freund Bros Bread Co., 150 Mo.App. 162; Stegman v. Gerber, 146 Mo.App. 104; Bair v. Heibel, 103 Mo.App. 621, Pohlman v. American Car and Foundry Co., 125 Mo.App. 219; Finreta v. American Mfg. Co., 174 Mo.App. 87. (c) Even if he did not understand the danger, it was not through a failure to understand it that he was injured, because he did not intend to put his hand in the place in which it was injured.
John C. Robertson for respondent.
(1) The giving of the order by the authorized representative of the master amounts to a tacit assurance that the machine is safe, and that the order may be safely carried out in the manner directed. Morgan v. Mo. P. R. R. Co., 136 Mo.App. 337; Hoover v. Coal Co., 160 Mo.App. 326; Keegan v. Kavanaugh, 62 Mo. 232; McGowan v. Railroad, 61 Mo. 532; Wells French Co. v. Gortoski, 50 Ill.App. 445; Wells French Co. v. Kapaczki, 110 Ill.App. 477; Lab. on Master and Servant, sec. 1374; Rolland v. Railroad, 20 Mo.App. 463; Sullivan v. Railroad, 107 Mo. 66; Tsoulufas v. Stamping Co., 139 Mo.App. 141; Sampson v. Railroad, 156 Mo.App. 419; Schlavick v. Shoe Co., 157 Mo.App. 83. (2) Defendant's failure to instruct an ignorant workman in the use of the machine held sufficient to carry the case to the jury. Kaspeta v. Mfg. Co., 73 N.H. 22; Bennett v. Lime Co., 146 Mo.App. 565; Greachen v. Mfg. Co., 209 Pa. 6; Bromley v. Smith, 12 Mo.App. 594; Bremen v. Gordon, 118 N.Y. 489; Reynolds v. Railroad, 64 Vt. 66; Railroad v. Valiron, 56 Ind. 511; Sullivan v. India Mfg. Co., 113 Mass. 396; Southern Improvement Co. v. Smith Admirers, 85 Va. 306; Broderick v. Andrews, 135 Mo.App. 57. (3) Strictness of pleading is not required. Sharp v. Railroad, 139 Mo.App. 525; Dalton v. United Railways Co., 134 Mo.App. 392; Weese v. Brown, 102 Mo. 299; Bradley v. Sweiger, 61 Mo.App. 419; Bradley v. Coal Co., 167 Mo.App. 177; Curtis v. McNair, 173 Mo. 270; Delo v. Mining Co., 160 Mo.App. 38. (4) Where the master or his foreman retains control and directs the movements of a servant, the latter may place a reasonable reliance upon the master's care for his safety, and obey such orders, as given him, unless danger is apparent; and he does not assume the risks of injury under such circumstances. Hall v. Railroad, 165 Mo.App. 115; Bradley v. Railroad, 138 Mo. 293. (5) Where the servant while in the exercise of reasonable care and in the performance of his duty of obedience, is injured in consequence of a negligent and unusual method of work ordered by the master, the latter is liable, notwithstanding he has provided a reasonably safe place and reasonably safe appliances. Smart v. Railroad, 164 Mo.App. 61; Kane v. Falk Co., 93 Mo.App. 209; Cunningham v. Journal Co., 95 Mo.App. 47. (6) The fact that at the time when the injury was received an emergency existed, which demanded unusual prompt action, relieves the plaintiff of the charge of contributory negligence. Junction Min. Co. v. Ench, 111 Ill.App. 346; Woodson v. Prescott N.W. R. Co. , 91 Ark. 398; Smith v. Spokane Falls & N. R. Co., 52 Washington 352; Kilpatrick v. Grand Trunk R. Co., 74 Va. 288; Davis v. Bonne Terre Min. Co., 20 S. Dak. 399; Self v. Adele Lumber Co., 5 Ga.App. 46; Colorado Midland R. Co. v. Brady, 45 Col. 203; Lawless v. Conn. River Co., 136 Mass. 1. (7) This was an action brought before a justice of the peace and formal pleadings were not required and under the allegation that the appellant was negligent, plaintiff should be permitted to show any act at all that would convict the appellant of negligence. Tockstein v. Bimmerle, 150 Mo.App. 491; Edwards v. Schreiber, 168 Mo.App. 197; Sepetowski v. Transit Co., 102 Mo.App. 110; Bromschwig v. M. K. & T. Ry. Co., 165 Mo.App. 350; Crotty v. Brown, 167 Mo.App. 1.
This is an action for personal injuries sustained by plaintiff while in the employ of the defendant corporation as its servant, and alleged to have been occasioned by defendant's negligence. The suit was instituted before a justice of the peace where plaintiff had judgment. Upon defendant's appeal to the circuit court and a trial there de novo, before the court and a jury, plaintiff suffered a nonsuit at the close of his case. Thereafter on plaintiff's motion the court set aside the nonsuit and granted plaintiff a new trial. From the order granting a new trial defendant prosecutes this appeal.
Plaintiff received his injuries on October 3, 1912, while operating a machine in defendant's factory known as a "baler" and used for compressing loose, "scrap" wire into bundles or bales. When injured plaintiff was about thirty-eight years of age. He is of foreign birth and apparently uneducated, but had resided in this country for some years prior to his injury and had evidently become moderately proficient in the use of the English language. For some months prior to the time of his injury he had been in defendant's employ, and for some considerable period one of his duties had been to feed loose wire into the baling machine; and he had operated the machine from time to time for short periods while the regular operator thereof was at lunch. On the day in question the defendant desired to repress certain bales of wire in order to make them smaller, and defendant's foreman directed plaintiff to operate the baling machine for such purpose. The machine was box-like in shape, and the outer part thereof consisted of heavy stationary sides and a lid or top which could be opened and closed. Within, the mechanism which did the baling consisted of two movable sides, which, together with a plate or casting in the rear, moved slowly back and forth as the machine operated. When the baler was open, i. e., in position to receive material to be compressed, these movable sides pressed against the outer stationary sides of the machine.
On the day of plaintiff's injury defendant's foreman put a board inside of each of the movable sides above mentioned, and a board in the rear also, in order that the bales to be repressed might be made smaller. It is said that the rear board did not fit well and broke while the foreman was in charge of the machine, and that he then directed plaintiff to operate it without such board, the other two boards being sufficient for the purpose aforesaid. Plaintiff operated the machine for some time and compressed a number of the bundles. Defendant's foreman, called as a witness by plaintiff, testified that when he returned to the machine he observed that plaintiff was removing the compressed bales without stopping the machine, and told him not to do this, but to stop the machine when a bale had been compressed in order to remove it and put in another. The testimony is that the motion of the movable parts of the machine was very slow, and that it could be very quickly stopped at any point by the use of a hand lever situated at the right of the machine within reach of the operator. When injured plaintiff was standing in front of the machine, the lid thereof being raised; and it appears that the foreman was standing nearby, but with his back toward the machine. The baler was opening, after having compressed one of the bales, and plaintiff in some manner got two fingers of his left hand between the left movable side thereof and the stationary side of the outer part of the machine as the former was receding toward the latter, whereby the ends of these fingers were cut off. Plaintiff testified that the board which had been placed inside of the left movable side of the baler was "going to fall over," and that he undertook to take out this board when his fingers were caught. The evidence is, however, that his fingers were not caught between the board and the movable side of the baler, the latter being several inches in thickness, but between this movable side and the stationary side of the outer part of the machine; and it would appear to have been impossible for his fingers to have been caught between the board and the movable side while the baler was opening.
Plaintiff testified that when he was directed to go to work at the machine he told the foreman he did not want to do so, and asked the latter if he did not have "enough Englishmen to put on that machine;" that he did not "understand how to work on the machine." This the foreman denies. Plaintiff also testified that when he first started operating the machine he closed down the top thereof this being the way in which the machine had been operated when baling loose wire, but that the foreman told him to operate it with the lid raised. The foreman denies that anything was said about the lid. It appears that the office of this lid was to...
To continue reading
Request your trial