Ryan v. Christian Board of Publication

• Decision Date: 08 January 1918
• Docket Number: No. 14939.,14939.
• Citation: 199 S.W. 1030
• Parties: RYAN v. CHRISTIAN BOARD OF PUBLICATION.
• Court: Missouri Court of Appeals

199 S.W. 1030

RYAN v. CHRISTIAN BOARD OF PUBLICATION.

No. 14939.

St. Louis Court of Appeals. Missouri.

January 8, 1918.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

"Not to be officially published."

Action by Dennis Ryan against the Christian Board of Publication. Judgment for defendant, and plaintiff appeals. Affirmed.

Thos. Morris and Maurice McKeag, both of St. Louis, for appellant. Leahy, Saunders & Barth, of St. Louis, for respondent.

BECKER, J.

This is an action for personal injuries suffered by plaintiff in April, 1914, while in the employ of the defendant as a feeder of a printing press. Plaintiff took an involuntary nonsuit, and from the action of the court in overruling plaintiff's motion to set same aside brings this appeal.

The undisputed facts in the case are that the plaintiff, on the day in question and for some time prior thereto, had been in the employ of the defendant company, a corporation, engaged in the publication business in the city of St. Louis, Mo. His particular work was that of feeding a printing press, among his duties being that of what is termed spotting up or leveling up the forms. The plaintiff worked in what was known as the press department. This department, in which were several printing presses of different sizes, was in charge of a superintendent, Henry Fitzgerald, who was foreman over all the employés working therein.

On the day that plaintiff met with his injuries he was leveling up forms to be used in what is termed a "pony press," operated by one Edward Bersch. This pony press was distant about 10 feet from a much larger press, which was in charge of a man named James Peery. In connection with and part of this larger press was an automatic feeder, consisting of a movable platform or elevator some 4½ by 6 or 7 feet, which was raised and lowered by electric power. This automatic feeder or elevator, when in operation, ascended very slowly from its position some 1 or 1½ feet above the floor to a height presumably equal to that of the top of the press. This larger press and its automatic feeder had not been in use for some days prior to the day in question. On the day plaintiff met with his injuries he, as well as another workman in the pressroom, seated themselves upon this automatic feeder or elevator and proceeded to do their work of leveling or spotting up some forms. Plaintiff testified that, when doing this character of work, there was no regular place provided for doing it, and it was customary for the employés to use the automatic feeder or elevator for that purpose, when they had such work to do and the elevator was not in use. The particular work that plaintiff was so doing had been given him by Bersch to be used in connection with a job Bersch was doing on the pony press.

Plaintiff testified that, when he had finished his spotting or leveling up the form, he looked up and the automatic feeder or elevator was ascending; that he had never known of it to go up before until it was loaded with paper to be used in connection with work done in the large press that it was part of; that the elevator was approximately 4 feet from the floor when he first realized that the elevator or platform was in motion; that he immediately jumped off the platform to the floor beneath, because he was afraid he would be crushed; that after he jumped he landed on the floor beneath, breaking his left wrist, and receiving a cut under one of his eyes and other injuries. Plaintiff further testified that it was James Peery who had started the elevator, and that said Peery was pressman on the big press in connection with which the said automatic feeder was operated; that said Peery and plaintiff worked on the same floor, Peery on the big press and plaintiff on the pony press; that Fitzgerald was the foreman or superintendent of the entire department, and was foreman over both Peery and himself. And plaintiff further testified that at the time of the accident he was not working for Peery, but was working on the pony press, and that Peery was not controlling his actions in any way or exercising any authority over him at the time, and further that Peery had not given him any order that day nor for several days before.

Edward Bersch testified for plaintiff that he was a pressman in the employ of the defendant company, and that on the day that plaintiff met with his injuries the plaintiff was working with him, and that the witness had given plaintiff orders to spot up some forms for the pony press, and that plaintiff had sat down on the automatic feeder of the big press to do the particular work given him by the witness; that James Peery had charge of the press and automatic feeder; that the department in which the witness, Peery,...