Saller v. Friedman Bros. Shoe Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Bland
• Citation: 109 S.W. 794,130 Mo. App. 712
• Decision Date: 14 April 1908
• Parties: SALLER v. FRIEDMAN BROS. SHOE CO.

109 S.W. 794 130 Mo. App. 712 SALLER
v.
FRIEDMAN BROS. SHOE CO. St. Louis Court of Appeals. Missouri. April 14, 1908.

1. JURY — COMPETENCY — CHALLENGES — EXAMINATION OF JURORS.

In an action for injuries to an employé, it was proper to permit plaintiff to ask jurors on their voir dire, whether they were or knew of anyone engaged in business for an accident insurance company, with a view of ascertaining whether the jurors by reason of their social or business relations would probably be prejudiced against a recovery, though the company was not a party.

2. MASTER AND SERVANT — INJURY TO SERVANT — NEGLIGENCE.

In an action for injuries to an employé 15 years old while operating a sole molding machine in a shoe factory, evidence held to authorize a finding that the employer's foreman was guilty of negligence, not only in permitting the employé to operate the machine in a dangerous manner, but also in inciting him to run it faster than could be done in safety.

3. SAME — ASSUMPTION OF RISK.

Generally an employé assumes such risks as are open and obvious or which he would have observed had he used ordinary caution, but children do not assume the ordinary risks of the operation of machines or such risks as they do not perceive and apprehend, and of which they are not informed and warned against.

[109 S.W. 795]

4. SAME — QUESTIONS FOR JURY.

Whether a child assumes the ordinary risks incident to his employment or is guilty of contributory negligence, where no instructions are given or the dangers of his employment pointed out to him, is for the jury, where different inferences are fairly deducible from the evidence.

5. SAME.

Whether an employé 15 years old, operating a sole molding machine in a shoe factory, assumed the risk or was guilty of contributory negligence, held, under the evidence, for the jury.

6. SAME — SAFE APPLIANCES — DUTY OF MASTER.

A master must exercise ordinary care in furnishing safe and suitable tools for his servants, but no inference of negligence can arise from evidence which shows that the implement furnished was such as is ordinarily used for like purposes by persons in the same kind of business.

7. SAME — EVIDENCE — ADMISSIBILITY.

In an action for injuries to an employé 15 years old while operating a sole molding machine in a shoe factory, evidence that the machine was in common use was admissible to rebut the inference that the employer was negligent in placing the employé to work on a dangerous machine without instructions or warning of its danger, but evidence that boys of employé's size, age, and capacity commonly operated such machines was inadmissible.

8. SAME — INSTRUCTIONS.

Where, in an action for injuries to an employé 15 years old while operating a machine in a shoe factory, the evidence showed that the employé had not been instructed how to operate the machine, except that he had seen a third person operate it for a few minutes, that shortly before the accident the employer's foreman had ordered the employé to hurry up, stating that if he could not some one else would be procured to do the work, an instruction authorizing a verdict for the employé on the jury finding that the employer by its foreman commanded the employé to hurry up with the work, and that the employé in compliance and in the presence of the foreman started to operate the machine in a rapid manner; that it was dangerous to the employé to operate the machine in such manner; and that the employer by the foreman failed to instruct the employé so that he would comprehend the danger, etc., was not erroneous because it permitted the jury to find that the employer was guilty of negligence because the foreman had commanded the employé to hurry up with the work.

9. SAME — INSTRUCTIONS — MISLEADING INSTRUCTIONS.

Where, in an action for injuries to an employé while operating a machine, the testimony showed that the employé was not instructed as to how to operate the machine, further than that he saw a third person operate it for a few minutes, who told the employé to start the machine by putting his foot on a treadle, and to stop it by removing his foot therefrom, and that shortly before the accident a foreman had ordered the employé to hurry up with the work, an instruction that if the employer by the foreman or any one else, negligently failed to instruct the plaintiff, a recovery was authorized, etc., was not objectionable as authorizing the jury to find that if any one failed to instruct the employé he might recover.

10. TRIAL — INSTRUCTIONS.

Where, in an action for injuries to an employé 15 years old while operating a machine, the employé testified that he did not think of or appreciate the danger of injury, and stated that he knew that if his fingers were caught in the machine they would be crushed, an instruction authorizing a recovery on finding that the employé did not know of and comprehend the dangers in operating the machine, and that the dangers were not apparent to a person of his age, experience, and capacity, etc., was not erroneous as permitting the jury to find that the employé, by reason of his inexperience, did not know of and comprehend the danger.

11. MASTER AND SERVANT — INJURY TO SERVANT — DUTY TO WARN SERVANT.

The mere fact that the danger to which an employé 15 years old is exposed while operating a machine is open and obvious to a man of ordinary prudence does not relieve the employer from the duty of instructing the employé in respect to such danger, though the employé knew that his fingers would be crushed if caught in the machine.

12. TRIAL — INSTRUCTIONS — IGNORING EVIDENCE.

Where, in an action for injury to an employé 15 years old while operating a machine, there was evidence that the injury was caused by the negligence of the employer's foreman in inciting the employé to run the machine at a dangerous speed, a requested instruction ignoring such proof is properly refused.

13. DAMAGES — PERSONAL INJURIES — EXCESSIVE DAMAGES.

An employé 15 years old was injured, resulting in a loss of the index and middle fingers of his right hand. The stumps of the amputated fingers were tender and painful at times. The employé suffered great pain and mental anguish, and lost considerable time. Held, that a verdict for $3,000 was not excessive.

14. APPEAL AND ERROR — REVIEW — DAMAGES.

The verdict in a personal injury action will not be set aside as excessive unless the damages awarded are so manifestly excessive as to show that the jury was influenced by passion or prejudice.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Henry F. Saller by his next friend against the Friedman Bros. Shoe Company. From a judgment for plaintiff, defendant appeals. Affirmed.

On January 13, 1905, plaintiff, a youth 15 years and 10 months old, was in the employ of defendant, and by defendant's direction was operating a sole molding machine in defendant's shoe factory in the city of St. Louis. The machine had two sole molders, one to the right and one to the left of the operator. Each molder consisted of two pieces, or halves, made of iron, and in shape

[109 S.W. 796]

of a shoe sole. The upper half was stationary; the lower one, when the machine was in operation, would descend from the upper one and then move out clear of the upper piece toward and near the operator; at this point of the operation, the operator's duty was to remove the sole which had been molded on the lower piece and put another one on it to be molded; the lower half would then draw back under the upper half and then move upward, pressing forcibly against the upper half. As the lower half of the right molder ascended, the lower half of the left molder descended and the same operation was gone through with again and again. On the day named, and while operating the machine, the index and middle fingers of plaintiff's right hand were caught in the right-hand molder and so badly crushed they had to be amputated. The action is to recover for these injuries.

It is alleged in the petition, substantially, that plaintiff was without experience in operating the machine, and that the machine was dangerous to operate, especially so for one of plaintiff's age and inexperience, and that defendant's foreman, with knowledge of plaintiff's inexperience and youth, negligently placed plaintiff to work on the machine, but failed to instruct him how to operate it, and failed to warn him in regard to the dangers connected with its operation, and commanded plaintiff to operate it in a rapid and dangerous manner; that on account of plaintiff's youth and inexperience the danger of operating the machine was unknown to him and not appreciated. No complaint is made in the petition, nor is there any proof that the machine was defective or out of repair. The answer was a general denial and a plea of assumption of risk, and also of contributory negligence. The machine was driven by steam power, and was set up in the sole leather department of defendant's factory. E. M. Leonard was foreman of this department, and employed plaintiff about eight days before the accident, setting him to work on the machine where he was injured. Robert Marohn was operating the machine at the time, and Leonard directed plaintiff to Marohn, who told plaintiff to put his foot on the treadle of the machine, then put in one sole and then take it off and when he lifted his foot the sole would come out and the machine stop, and the same thing was to be done over and over again. He operated the machine for a few minutes to demonstrate how it was operated. Plaintiff says this was all the instruction given him; that nothing whatever was said about any danger connected with its operation. The machine was put in motion by placing the foot on the treadle. It would stop in about two seconds if the foot was removed from the treadle. Plaintiff operated the machine six or seven days before he was injured. He testified that during that time he did not discover the...