Schlavick v. Friedman-Shelby Shoe Co.

• Decision Date: 01 May 1911
• Citation: 137 S.W. 79,157 Mo. App. 83
• Parties: SCHLAVICK v. FRIEDMAN-SHELBY SHOE CO.
• Court: Missouri Court of Appeals

137 S.W. 79

157 Mo. App. 83

SCHLAVICK v. FRIEDMAN-SHELBY SHOE CO.

St. Louis Court of Appeals. Missouri.

May 1, 1911.

1. MASTER AND SERVANT (§ 150)—INJURY TO SERVANT—NEGLIGENCE.

An improvident order of a vice principal to a servant to do specified work, unaccompanied by any warning as to the dangers which are known or by ordinary care ought to be known by the master, and which are unknown to the servant, amounts to a breach of duty for which action lies for injury resulting to the servant.

2. MASTER AND SERVANT (§ 150)—INJURY TO SERVANT—NEGLIGENCE.

A foreman directed a servant to remove whitewash from a revolving shaft 12 or 14 feet above the floor. The foreman knew of protruding thumbscrews on the shaft. The servant having no knowledge thereof was caught by the thumbscrews and injured. Held, as a matter of law, that the master was guilty of actionable negligence in directing the work without warning the servant of the danger.

3. MASTER AND SERVANT (§ 289)—INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

A servant in a shoe factory employed to heel shoes was directed by the foreman to remove whitewash on a revolving shaft from which thumbscrews projected. He was caught by the screws and injured. When directed to do the work, he objected, but was ordered to do so under penalty of losing his position. There was nothing to show that he knew of the thumbscrews, or that he had ever seen the shaft when not in rapid motion. Held, that the servant was not, as a matter of law, guilty of contributory negligence.

4. MASTER AND SERVANT (§ 245)—INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE.

A servant need not refuse to obey a peremptory order of the foreman, though he has knowledge of a defect in an appliance with which he is to work, if an ordinarily prudent person may believe that he can execute the direction with reasonable safety to himself by exercising high care to that end, and it is only when the defect obviously threatens imminent peril to such an extent that fair minds must agree no ordinarily prudent person would encounter it that one's right to recovery may be denied as a matter of law on the ground of contributory negligence.

5. MASTER AND SERVANT (§ 288)—INJURY TO SERVANT—ASSUMPTION OF RISK.

A servant, employed in a shoe factory to heel shoes, was directed by the foreman to whitewash a revolving shaft near the ceiling. Thumbscrews projected from the shaft, and the servant was caught thereon and injured. He objected to doing the work, but was directed to do so under penalty of losing his job. There was nothing to show that he knew of the protruding thumbscrews, or that he had ever seen the shaft except in motion. He was unfamiliar with the shaft. Held, that he did not, as a matter of law, assume the risk of injury.

6. MASTER AND SERVANT (§ 222)—INJURY TO SERVANT—ASSUMPTION OF RISK.

A servant, to assume a risk, must comprehend and appreciate the danger, and he must freely accept it, and where one, though knowing and understanding that a task he is ordered to do by a master, involves considerable dangers, and he encounters them because of the peremptory order of the master, he does not assume the risk.

7. TRIAL (§ 120)—ARGUMENT OF COUNSEL— COMMENT ON EVIDENCE.

A judgment will not be reversed because the court refused to permit counsel of the defeated party to comment on evidence not in the record.

8. APPEAL AND ERROR (§ 1060)—HARMLESS ERROR—ARGUMENT OF COUNSEL.

Where, in a personal injury action, the court properly excluded an exhibition of scars on plaintiff's person, the refusal to deny to defendant's counsel the right to comment on plaintiff's objection was not reversible within Rev. St. 1909, § 2082, providing that no judgment shall be reversed unless error was committed against the complaining party materially affecting the merits of the action.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Ralph Schlavick, by Theodore Schlavick, next friend, against the Friedman-Shelby Shoe Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Watts, Dines, Gentry & Lee, for appellant. Ellroy V. Selleck and George Safford, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through defendant's negligence. Plaintiff recovered, and defendant prosecutes the appeal.

At the time of his injury, plaintiff, a youth 17 years and 4 months of age, was in defendant's employ in its shoe factory in the city of St. Louis. His occupation pertained to that of heeling shoes, but he received his injury from performing a task under the order of his foreman wholly aside and extra of the occupation mentioned. Together with others in charge of defendant's foreman, plaintiff was engaged in whitewashing the workroom occupied by himself and companions. A revolving shaft to which numerous pulleys and belts were attached operated with high speed horizontally across and near the ceiling of the room, and this shaft is said to be about 30 feet in length. In the process of whitewashing the walls and ceiling, a quantity of the fluid fell upon the revolving shaft near the ceiling, and the foreman and vice principal ordered plaintiff to remove the whitewash from the shaft by rubbing it off. It appears the shaft which was then in motion was about 12 or 14 feet above the floor of the room and 2 or 3 feet beneath the ceiling where it operated horizontally, and because of these circumstances plaintiff objected to undertaking the task of cleaning it off. After plaintiff demurred, he testifies: The foreman said, "You will have to do it or lose your job." "So I went up and done it." Plaintiff took a position on top of a wardrobe and stood thereon engaged in wiping the whitewash spots from the shaft as it rapidly revolved in propelling the machinery attached when his jumper, or working coat, became entangled with a thumbscrew on the shaft, and occasioned his injuries. It appears a small thumbscrew extends slightly from the shaft at every bearing where pulleys are attached, some four or five feet apart, and that plaintiff's jumper, or coat, was caught by one of these in such a manner as to make him fast to the moving shaft and revolve him around therewith. From being so caught, he was whirled around the shaft for several revolutions and until every shred of clothing, save his stockings and shoes, were torn from his body, and he was thrown to the side of the room on a table with such force as to break it. He thus received painful and serious injuries, though they may not be permanent. The extent of his injuries is unimportant, however, on this appeal, as no point is made with respect to the matter.

The allegation of negligence relied upon in the petition goes to the effect that defendant breached its duty to exercise ordinary care for plaintiff's safety by ordering him to perform the task mentioned outside of his regular employment in view of his ignorance as to the condition which obtained about the shaft without first warning him as to its dangers. It is argued that the failure to warn is not available to plaintiff in the circumstances of the case, for it appears that the danger was open and obvious, and that he knew it as well as the master.

Though it be true as a general proposition that one may not predicate a breach of duty on a mere failure to warn the servant with respect to an open and obvious danger which is well known, as was determined in Stegmann v. Gerber, 146 Mo. App. 104, 123 S. W. 1041, Herbert v. Mound City, etc., Co., 90 Mo. App. 305, and Nugent v. Milling Co., 131 Mo. 241, 33 S. W. 428, it is true as well that such an improvident order from the vice principal to a servant without experience about the particular task, unaccompanied with warning as to its dangers which are known, or may be by ordinary care, to the master and are unknown to the servant, evinces a breach of duty for which an action will lie if injury result therefrom. Such is the accepted rule of decision, and it is eminently just and fair. Dowling v. Allen, 102 Mo. 213, 14 S. W. 751; Id., 88 Mo....