Rogers v. Hammond Packing Co.
| Decision Date | 18 May 1914 |
| Citation | 166 S.W. 880,180 Mo.App. 227 |
| Parties | LAWRENCE ROGERS, Respondent, v. HAMMOND PACKING CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Charles H. Mayer, Judge.
REVERSED.
Judgment reversed.
William E. Stringfellow for appellant.
B. J Casteel and John D. McNeely for respondent.
Plaintiff sues for the loss of an eye destroyed by an unknown flying particle striking it while he was engaged in chipping out and removing the concrete from under the frame and base of a very large and heavy ice manufacturing machine. This concrete formed the bed on which the machine, including a large flywheel eighteen feet in diameter, rested, and in which its supports were embedded. Owing to years of use, the vibration of the machinery and possibly the dripping of oil thereon in some places, this concrete had shrunk or sunk down so as to render the machine less stable. It was desired to chip out a sufficient amount of the top of this concrete so that melted zinc could be run into the place of the concrete thus chipped out. Melted zinc could be forced more compactly into place under the machine than concrete, and when it cooled would not shrink but would maintain a close contact with the base of the machine and thus render the ponderous machinery practically stable. Most of this concrete was exceedingly hard but in the places where oil from the machinery had constantly dripped the concrete was soft and rotten.
The concrete was chipped out by means of hammers and chisels. A portion of the concrete was between the flywheel and the frame of the machine, so that a workman engaged in chipping it out would have a more or less restricted place in which to work. Consequently, on account of the inaccessibility of some portions of the concrete, a shorter chisel could be used to better advantage, or would have to be used, than in others.
The charge in the petition is that defendant furnished plaintiff a piece of an old file to be used as a short chisel in digging out the places which could not be reached by the longer chisel; that such file was unfit for use as a chisel because, owing to its extremely high temper, it was very brittle and, when struck by the hammer, particles of steel would fly therefrom greatly endangering the workman; that this unfitness of the file for use as a chisel was known to defendant and unknown to plaintiff and could not be discovered by the exercise of ordinary care on plaintiff's part; and that while using said defective tool, under orders from defendant, a piece of said file broke off striking plaintiff in the eye injuring it so badly that it had to be removed.
The answer was a general denial together with pleas of assumed risk and contributory negligence.
The case was before this court at the October term, 1912, on defendant's appeal from a judgment upon a jury's verdict in plaintiff's favor. [Rogers v. Hammond Packing Co., 167 Mo.App. 49, 150 S.W. 556.] By reference to the opinion rendered at that time by JOHNSON, J., speaking for this court, it will be observed that this court held then that, although plaintiff's evidence was strongly contradicted, yet there was substantial evidence that the foreman gave the plaintiff the file as one of the necessary tools for use in the work and instructed him in its use, that plaintiff was using it as instructed and did not know of the danger of striking its brittle end with a steel hammer, and that the file, on account of its temper, was not a reasonably safe tool for the work in which it was directed to be used. [See 167 Mo.App. 49.] And on page 56 the court, after holding that the mere fact that a chisel was included in the tools furnished would be insufficient to establish negligence, says that there was substantial evidence tending to show that the foreman not only included the file among the necessary tools furnished, but instructed him in the use of the file as a chisel and in effect directed him to use it in places that could not be conveniently reached by the longer tools. The case was reversed and remanded, however, because the evidence did not support the further conclusion that such negligence in furnishing a tool known to be unfit was the cause of the injury or sustained any causal relation to it. While no reason is given for remanding the cause for a new trial, evidently it was because the court thought from the state of the evidence that, if it had been more thoroughly developed, a case would have been made.
At any rate the case has been retried, another jury has found in plaintiff's favor, and the case is again before us for consideration.
It is conceded that a file is an unfit and an unsafe tool for use as a chisel on account of its being so highly tempered that, when struck by a hammer, particles of steel will fly with great force from the end receiving the blow. It is also apparent that this property or character of files was well known to defendant. And there is sufficient evidence tending to show that plaintiff did not know of it. He testified that he did not. He is an Italian, calls himself a common laborer, and his previous employments, his use of language--at least the English language--and his ability to understand it and make himself understood, does not show him to be anything else, nor does the evidence. And there is nothing to show that knowledge of the brittle qualities of a file, or of its tendency to throw off particles when struck, had ever been acquired by him either by experience or through information from others.
Defendant contends that under the evidence no case has been made. This contention is based upon several grounds. First, that no file was furnished at all for any purpose, but that even if a file was among the tools supplied by defendant there is no evidence that it was supplied for use as a chisel and to be struck by a hammer. Second, that even if a file was so furnished and used, still it is just as probable, if not more so, that the injury was caused by a flying piece of concrete as by a piece of metal, and that, even if it was a piece of metal, it is problematical whether said piece of metal came from the file or from the head of the hammer. Consequently the jury could only guess or speculate as to what caused the injury.
Taking up the first contention above noted that no file was furnished at all for any purpose nor used upon the job, but if so, was not furnished as a chisel, we recognize the fact that plaintiff is alone in his testimony that a file was furnished and is contradicted by the foreman and all the workmen in the place on this point. But a careful examination of plaintiff's evidence and of all the other facts and circumstances shown to have existed, discloses that there was at least some substantial evidence that a file was furnished and that it was furnished for use as a chisel and to be used by striking it with a hammer. The questions whether a file was furnished and whether it was furnished to be used as a chisel were very clearly and specifically submitted to the jury by instructions on both sides, and the jury was told that if they found that defendant did not furnish plaintiff with a file to be used as a chisel and struck with a hammer, then plaintiff had no case. So that the jury by its verdict found that a file was furnished to be used as a chisel, and we cannot say there was no evidence to support that finding.
The second contention, namely, that the evidence does not show what caused the injury, and consequently, the jury were left to merely guess whether the particle that struck plaintiff in the eye came from the head of the file or elsewhere is of much force and raises the great difficulty which plaintiff must overcome before he is entitled to a recovery. It must be borne in mind that the piece of broken file plaintiff claims to have been using as a chisel was not too highly tempered at the cutting end but was only so at the top or hammered end the way files are made, the point at the end is not tempered any harder than a properly tempered chisel, but the part...
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