Primmer v. American Car & Foundry

• Decision Date: 06 December 1927
• Docket Number: No. 19792.,19792.
• Citation: 299 S.W. 825
• Parties: PRIMMER v. AMERICAN CAR & FOUNDRY CO.
• Court: Missouri Court of Appeals

299 S.W. 825

PRIMMER v. AMERICAN CAR & FOUNDRY CO.

No. 19792.

St. Louis Court of Appeals, Missouri.

December 6, 1927.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Action by Robert Primmer against the American Car & Foundry Company. Judgment for plaintiff, and he appeals from an order granting a new trial. Order affirmed, and cause remanded.

Douglass & Inman, of St. Louis, for appellant.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis (G. A. Orth, of New York City, of counsel), for respondent.

BENNICK, C.

This is an action for damages for personal injuries, sustained by plaintiff, an employee of defendant, while he was engaged in cutting bars of metal with electrically operated shears. The case was tried to a jury, resulting in a verdict in favor of plaintiff for $1,700. Subsequently defendant's motion for a new trial was sustained by the court, from which order plaintiff has appealed.

The sole charge of negligence submitted to the jury was that defendant had negligently required plaintiff, while operating the shears, to stand on a dirt floor, which was uneven and rough, and that it had negligently failed to remove from the floor the pieces of metal which had fallen from the shears, when it knew, or by the exercise of ordinary care could have known, that said pieces of metal on the rough and uneven floor would be likely to cause plaintiff to slip and fall, and catch his hand in the machine.

However, the remaining assignments in the petition become material upon the issues here presented, even though they were not relied upon by plaintiff in the submission of his case, namely, that the shears with which plaintiff was working were old, worn, and defective, so that at times they would not cut the iron, but would draw it through the shears, as happened at the time plaintiff was injured, when his hand was drawn into the shears before he could remove it; and that said shears could have been safely and securely guarded, although defendant had negligently failed to take such precaution.

The answer of defendant was a general denial, coupled with a plea of contributory negligence. The reply was in conventional form.

The evidence disclosed that plaintiff had been in the employ of defendant for 18 months as a helper to the regular operator of shears, when he received his injury on January 21, 1924. The operator was one Tolka, known to plaintiff as "Pop," from whom plaintiff always received his orders. Plaintiff's duties generally were to assist Tolka in handling the heavy bars of iron, while they were being run through the shears, and to clean up such refuse from the machine as chanced to fall to the floor. Upon numerous occasions, however, plaintiff himself operated the shears, under orders from his superiors, at which times the duty devolved upon another employee to keep the floor clean.

Upon the day in question, plaintiff had been directed by Tolka to operate the shear during the latter's absence. After the work had progressed without mishap for some 30 minutes, a steel bar, inserted between the shears by plaintiff, caught in notches which had worn in the lower blade, and was thereby caused to fly back towards plaintiff. He immediately jumped to one side to avoid being struck, but, unfortunately, in so doing, his feet slipped (inferentially upon the pieces of metal which had not been removed from the floor), causing his hand to come between the blades of the shears, and to be severely injured.

The particular grounds assigned by the trial judge for sustaining the motion for a new trial were that he had erred in orally instructing the jury during the argument of the case and in permitting counsel for plaintiff to argue questions of law to the jury which were not covered by the instructions given. In view of the situation in which the case is thus presented, it occurs to us that a proper understanding of the ruling of the court on the motion for a new trial necessitates that we set out that portion of the argument of plaintiff's counsel complained of, during which the alleged erroneous action of the court was taken. We quote from the abstract of the record as follows:

"Mr. Horsefield: The defendants brought up a piece, and say that is the piece Primmer was hurt on, and Pop says, when he went back there and saw this piece laying on the ground, he put it in a box. He never saw it any more. Mr. George says Sullivan sent him after the piece, and he went out and found the piece on the shears, and there wasn't any box there at all. Now, gentlemen of the jury, George says Sullivan sent him out there. If the blades of the shearing machine were not defective, why didn't they detach that lower blade and bring it here?

"Mr. Sheppard: He is not going to the jury on the ground the blades on these shears are defective. I object to that. There is no instruction telling the jury, if they believe these blades were defective, they can find a verdict for plaintiff. He is going only on the theory that plaintiff slipped on something on the ground. I object to any argument about the blades, saying why didn't we bring them here, when he is not going to the jury on that theory at all now.

"The Court: No; I don't understand that a plaintiff is limited to his theories by his instructions. He don't have to give any instructions, and any theory can go to the jury that there is evidence on.

"Mr. Sheppard: Does your honor mean that he can go to the jury on a theory upon which the jury has not been instructed what they have to find at all?

"The Court: Yes; I take the position that the jury have the right to take into consideration the condition of the machine in all the instructions.

"Mr. Sheppard: I believe I will except to that, your honor.

"The Court: Very well. (To which action and ruling of the court defendant, by its counsel, then and there duly excepted, and still excepts.) "Mr. Horsefield: It is not necessary for you to find that somebody said, `Now, Primmer, you go and cut on that machine,' because, if Ebel knew and had seen him work on the machine and directed him to at any time, Primmer has a right to rely upon that.

"Mr. Sheppard: I object to that last remark, that it is not necessary that this jury find anybody ordered plaintiff to work on this particular machine, the machine in evidence, but they may find that, if they find Ebel knew that Primmer had ever worked on this machine at any time, as arguing a question of law upon which the jury has not been instructed, and as being entirely outside of the instructions in this case. As I understand it, both counsel on the other side and myself are limited as to arguing the law to what the court said. I ask the jury to be instructed to disregard it. If he wants to argue that, he will have to ask an instruction on it.

"The Court: I will instruct the jury to be governed by the instructions given by the court. I think the argument is probably relevant on the question of his employment. The jury must find that he was employed there. That is one of the things they must find. And the mode of...