Rogers v. Hammond Packing Co.

• Decision Date: 11 November 1912
• Citation: 150 S.W. 556,167 Mo.App. 49
• Parties: LAWRENCE ROGERS, Respondent, v. HAMMOND PACKING COMPANY, Appellant
• Court: Kansas Court of Appeals

150 S.W. 556

167 Mo.App. 49

LAWRENCE ROGERS, Respondent, v. HAMMOND PACKING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 11, 1912

Appeal from Buchanan Circuit Court.--Hon. Wm. K. Amick, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

William E. Stringfellow for appellant.

B. J Casteel and J. D. McNeely for respondent.

OPINION

JOHNSON, J.

This is a suit by a servant against his master to recover damages for personal injuries alleged to have been caused by negligence of the master. The answer in addition to a general denial contains pleas of assumed risk and contributory negligence. Plaintiff recovered a judgment in the circuit court and the cause is here on the appeal of defendant.

Plaintiff was employed as a laborer in the meat packing establishment of defendant at St. Joseph and at the time of his injury was at work in the room where the heavy and powerful machinery of the ice plant was installed. The machinery was not running and defendant was putting it in proper repair and condition for the work of the approaching busy season. A heavy flywheel eighteen feet in diameter, the supports of which had been imbedded in concrete for ten or eleven years, had become somewhat unstable owing to the separation of the concrete from the metal base on which the wheel was swung and defendant had decided to replace the surrounding concrete with zinc to correct the needless vibrations and loss of motion occasioned by the lack of proper rigidity in the foundation. Plaintiff and other workmen were set to work removing the concrete from around the base of the wheel and were engaged in such work when a flying particle of steel or some other hard substance struck plaintiff in one of his eyes and injured it so that the oculist whom he consulted found it necessary to remove the eyeball. Plaintiff is an Italian who at the time of his injury, had been in the United States about eight years and spoke and understood the English language imperfectly. His work had not been of a nature to give him any knowledge of the uses and properties of tempered tools and he was ignorant of the dangers that lurk in such tools when appulsively used.

It appears that a hammer and chisel had to be used in removing the concrete and that, owing to the inaccessability of some of the concrete, a smaller shorter chisel was required than in places less hampered. It is the contention of plaintiff that the foreman of defendant included among the tools furnished plaintiff a piece of an old file to be used as a chisel in digging out the places that could not be reached by the chisels and that plaintiff was so using this piece of file and was striking the broken end with a hammer when a piece of steel broken from the end of the file being hammered flew into his eye. The negligence alleged in the petition is "that defendant, wholly neglecting and disregarding its duty in that behalf, did, through its foreman and vice-principal, under whom plaintiff was then and there working, furnish plaintiff with a part of a broken file with which to chip said cement and concrete out by using same as a chisel and by striking said file with a hammer, and plaintiff states that said piece of file was defective in that it was too brittle for such use and could not be used without causing pieces of steel to break and fly therefrom, which said defects were known to defendant, its foreman and vice-principal, or might by the exercise of ordinary care on their part have been known to them, but which was not known and could not be discovered with due care and caution by plaintiff.

"Plaintiff states that while so using the said defective tool so negligently furnished him by defendant and while acting under the orders of defendant and in the scope of plaintiff's employment a piece of said file broke off, striking plaintiff in the left eye and destroying the sight thereof and that said eye was thereby so cut and lacerated and injured that it had to be removed."

The evidence shows that most of the concrete to be removed was very hard but there were small areas where it had been soaked with oil from the axle bearings and plaintiff states that he was working in one of these places and that the concrete was rotten and soft and offered small resistance to the file point. It is a fair inference from the testimony of plaintiff that he was furnished the necessary tools by the foreman, instructed by the foreman in their use, and that he was using the file in the manner shown him by the foreman when the injury occurred.

We quote from his testimony: "Now, whom were you working under? A. Mr. Jack Curtis. Q. He was foreman over you? A. He was the foreman over me. Q. Did Mr. Curtis furnish you with any tools to do this work? A. Yes. Q. What kind of tools? A. He gave me a long chisel about two feet long. Q. Well, what do you think two feet are? How much? (Witness indicated with his hands.) Q. What else did he furnish? A. And he gave me a piece of iron about eighteen inches long. Q. And what else? A. And a piece of file. Q. And a piece of file? How long was that? A. About twelve inches long. Q. What else did he furnish you? Did you have any hammer, or anything like that? A. And a hammer. Q. What kind of hammer? A. Pound-and-a-half hammer. Q. What were you to do with those tools that he furnished you? A. Because sometimes it don't fit, the place was not large enough, and he took me out there and showed me the tools to work with. . . . Q. Why weren't you using those other tools--that long chisel and that long piece of iron? A. I couldn't use it. Q. Why? A. Why, they was too long; the space was not large enough to work."

. . . .

"Q. Now Mr. Curtis told you what to do? A. Yes. Q. And handed you those tools? A. Yes, I got the tools. Q. And that is all he said to you? A. He came there and showed me. Q. Did he use the tools himself? A. Yes. Q. What tools did he use? A. All of them. Q. All of them? A. Yes. Q. You saw Mr. Curtis use all four of those tools I show you? A. All four of them, yes. Q. How long was the chisel which Curtis gave you? A. A little longer than them there. Q. Was it three feet long or two feet long? A. Over two feet long. Q. Over two feet long? A. Yes. Q. And how long was the file that you say he gave you? A. About twelve inches. Q. How long was the other piece--the smaller piece of iron? A. Over eighteen inches."

. . . .

"Q. Did you use any kind of chisel except this file? A. I used that bigger one when we had more room on the other side. Q. Oh, you did use both of them? A. Yes."

. . . .

"Q. But just at the time you got hurt, you had taken this file? A. Yes. Q. And were using it as you indicated? A. Yes. Q. Well, however long it was, you had been working by yourself more than two hours before you got hurt? A. Yes; when we got to one side, you know, then we started on the other side. Q. It had been more than two hours since you had worked with the other man? A. I think so. . . . Yes, I worked all the way there. I cannot use this big chisel and piece of iron, but when I go in the wheel, I have room enough to work with it."

While doing the work described in the foregoing testimony plaintiff was kneeling and, of course, his eyes which were unprotected were not far from the top end of the file which was so hard and brittle that it would be shattered and broken by the impact of blows from a steel hammer of the weight described. The pointed end of the file was not so highly tempered. Indeed witnesses for defendant state that it was too soft to dig out hard concrete and would bend and double back under the force of the hammer. The answer of plaintiff to this contention is that the oilsoaked concrete which was composed of cement and sand was so rotten that it was as soft as plaster and yielded to the point of the file. Shortly after the injury an oculist examined the wound and found that the foreign particle had penetrated the ball to a point back of the equator and that the injury was so serious plaintiff would lose the sight of both eyes if the injured ball were not speedily removed. Thinking that the imbedded particle might be steel he used an electro magnet to draw it out, but without results. He states, however, that owing to the depth of the penetration adhesions could have held the particle back, and, therefore, that the result of his use of the magnet did not conclusively demonstrate that the particle was not steel. He was introduced as a witness by plaintiff and on cross-examination stated that the appearances of the wound showed that it might have been caused by a piece of stone...