Pohlmann v. American Car & Foundry Co.

• Decision Date: 19 February 1907
• Citation: 123 Mo. App. 219,100 S.W. 544
• Court: Missouri Court of Appeals
• Parties: POHLMANN v. AMERICAN CAR & FOUNDRY CO.

100 S.W. 544

123 Mo. App. 219

POHLMANN v. AMERICAN CAR & FOUNDRY CO.

St. Louis Court of Appeals. Missouri.

February 19, 1907.

Rehearing Denied March 19, 1907.

MASTER AND SERVANT—INJURY TO SERVANT FROM MACHINERY—CONTRIBUTORY NEGLIGENCE.

An employé engaged in operating a drill for drilling holes in iron, who, while reaching to put in place a water can used to moisten the drill, was injured by his glove catching in the set screw, which kept the drill bit in the upright shaft. is barred from recovery by contributory negligence, though he had not been instructed in the use of the machine; the set screw being in plain view, when the machine was at rest, and its presence being manifested by a ring or band about the shaft, when in motion, so that with the least attention it would have been seen, and the fact been appreciated that it would when in motion take hold of plaintiff's glove if brought near enough to it.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Joseph Pohlmann against the American Car & Foundry Company. Judgment for defendant. Plaintiff appeals. Affirmed.

The defendant, a corporation, owns and operates carshops and yards in South St. Louis. In August, 1904, plaintiff was hired by defendant and put at labor on car trucks, where he continued to work until February 23, 1905, when he was directed by his foreman to run a small drill machine in defendant's shop. Plaintiff operated this machine successfully and without accident during the day. On the succeeding day he was directed to operate a larger drill machine. Plaintiff operated this machine from 7 o'clock in the morning until 2 o'clock in the afternoon, when the glove on his left hand was caught by a thumb screw in the revolving shaft of the machine, causing his arm to be wound around the shaft and to break in two places below the elbow. The action is to recover for these injuries. The petition alleges: "That an appliance of said drill was a receptacle of water for supplying water to moisten the spot where the hole was being drilled and the part of the drill in contact with said spot. That at the time of the injury hereinafter mentioned, and for a long space of time next prior thereto said drill was defective, dangerous, and not reasonably safe for ordinary and reasonable use in said machine shop drilling holes, by reason of the following, to wit: Said set screw was so long, and extended such a distance from the surface of said vertical bar, that it was constantly liable to catch the hands and arms of the workman operating said drill; and said water receptacle was not secured or attached to its station or any other place, and was so placed that, when said drill was in use, the motion of the drill caused said receptacle to constantly move towards said vertical bar from which the person using said drill was compelled to move said receptacle whenever it reached said vertical bar, back to its station, and in doing so to bring his hands and arms in proximity to said vertical bar and said set screw. That defendant knew, or by the exercise of ordinary care would have known, that said drill was defective, dangerous, and unsafe, as above mentioned, in time by the exercise of ordinary diligence to have remedied the same before the time of the injury hereinafter mentioned, but neglected to do so, and negligently maintained said drill and said appliance as above described at the times herein mentioned without protection or notice of any kind to plaintiff. That on the 24th day of February 1905, plaintiff was in the service of defendant as a common laborer at said premises, and on said day defendant negligently furnished said drill, with its said appliance in the condition above mentioned, to plaintiff to use without protection or notice of any kind to him, and negligently directed plaintiff to use same, and negligently failed to warn or instruct plaintiff of the dangers arising from using said drill, although plaintiff was ignorant and unskilled in regard to said machine and in the use thereof and ignorant of the dangers arising from the use thereof, all of which defendant then knew. That on said 24th day of February, 1905, by reason of the negligence of defendant above mentioned, while plaintiff was using said drill in the discharge of the duty of his said employment, said set screw caught plaintiff's left hand and drew it and his left arm around the vertical bar above mentioned, thereby causing his said left arm to be broken between the wrist and elbow in two places, and his said arm and hand to be strained and bruised and injured."

The answer was a general denial and a plea of contributory negligence and of assumption of the risk ordinarily incident to the operation of the machine. The machine is called a drill press, and was used for the purpose of drilling holes in iron bars. It was operated by steam power. It had an upright shaft into which the drill bit or auger was inserted and made secure by a thumb screw. The bars of iron to be drilled were placed upon a round table about two feet high. The drill shaft was started to revolve and stopped by a lever in reach of the operator, and the bit was pressed down on the bar under the drill by means of a wheel overhead, also in reach of the operator. It was necessary to keep the bar and bit cool during the operation of drilling the hole. For this purpose a can of water was set on two blocks placed on the table behind the shaft opposite the operator. The drill shaft made about 120 revolutions a minute, and the vibration it produced caused the water can to slip toward the shaft. To slip the water can back in place plaintiff used his left hand; his right being engaged in turning the overhead wheel to keep the bit pressed down to its work. How frequently the can of water would slip out of place is not stated in the evidence. Plantiff testified that the water can slipped out of place while he was running the drill, and he reached around with his left hand to right it, when the thumb screw caught in the upper part of his glove and wound his arm around the shaft. He testified he knew nothing about the machine, and that no one told him how to operate it; that all the instruction he had when he went to work with the machine was to see one of the men in the shop drill one hole with it; that he did not see the thumb screw, and did not know there was one until he was injured. The bit plaintiff was using was taken out three times by the sharpener and put back into place in the shaft in plaintiff's presence. Plaintiff testified, however, he paid no attention to the sharpener taking out and putting back the bit, and did not notice how it was taken out or replaced. The thumb screw had a square head three-eighths of an inch in dimension and extended from 1 to 1¼ inches from the body of the shaft. The day was cold and cloudy, and the workmen all were gloves. The room was rather dark, but light enough for the men to see to work without artificial light. The bars of iron furnished plaintiff in which to drill holes were about five feet long.

The following is the most material part of plaintiff's cross-examination: "Q. There was nothing to prevent going around the arch bar? A. Yes, sir; you could go around it. Q. There was nothing to prevent you from turning the lever or moving the lever to the right-hand side of the machine and stopping it if you wanted to do it that way while you reached...