Seckinger v. Philibert & Johanning Manuf'G Co.

• Citation: 31 S.W. 957,129 Mo. 590
• Parties: SECKINGER v. PHILIBERT & JOHANNING MANUF'G CO.
• Decision Date: 02 July 1895
• Court: United States State Supreme Court of Missouri

31 S.W. 957

129 Mo. 590

SECKINGER v. PHILIBERT & JOHANNING MANUF'G CO.

Supreme Court of Missouri, Division No. 2.

July 2, 1895.

PLEADING — AIDER BY VERDICT — APPEAL — CHANGE OF THEORY — REVIEW — PERSONAL INJURIES — OPINION EVIDENCE.

1. All defects in a petition, except that it fails to state a cause of action, are cured by verdict.

2. Where a personal injury case has been tried on the theory that the injury was caused

by defective machinery, defendant, on appeal, cannot urge that the proximate cause of the injuries was the negligence of a fellow servant.

3. One cannot urge as ground for a reversal of a cause errors in instructions given at his own request.

4. A verdict rendered on conflicting evidence will not be reversed.

5. Where, in a suit for injuries by being struck by a stick thrown from a machine, there is evidence that plaintiff before the accident never had symptoms of consumption, and that this disease afterwards attacked him, and several physicians testify that the disease might be attributed to such an injury, the question whether the blow was the proximate cause of the disease is proper.

6. One who has practiced as a physician for 25 years is competent to testify as an expert that a blow could have caused pulmonary consumption, though he has already stated while on the witness stand that he was not a specialist in the treatment of consumption.

7. After verdict, the objection that the proof under the cause of action upon which recovery was had contradicts another cause of action alleged in the same petition cannot be urged.

8. A petition which alleges that an employé was struck on the chest by a stick thrown from a machine by reason of a defect therein which the plaintiff neither knew nor in the exercise of ordinary care ought to have known, and which the defendant by the exercise of ordinary care might have known, but nevertheless negligently permitted to exist, states a cause of action.

Appeal from St. Louis circuit court; Daniel Dillion, Judge.

Action by Frank M. Seckinger against Philibert & Johanning Manufacturing Company for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

C. P. & J. D. Johnson, for appellant. L. Frank Ottofy, for respondent.

BURGESS, J.

An action for damages for personal injuries sustained by plaintiff while in the service of defendant as a molder hand in defendant's planing mill. Plaintiff recovered a judgment for the sum of $5,000, from which defendant appealed. While no objection was made to the petition before or at the trial, or by motion in arrest, numerous objections as to its sufficiency are made for the first time in this court. It will therefore be set out in full. Omitting the formal parts, it is as follows: "Plaintiff states that defendant is, and was at the time hereinafter stated, a corporation organized and doing business under and by virtue of the laws of the state of Missouri. Plaintiff states that about the month of July, 1891, and for a long time prior thereto, he was employed by defendant as a cutter in its planing mill, and engaged in the operation of a molding machine, upon which it was his duty to prepare lumber; that in close proximity to his machine and his post of duty was situated a ripsawing machine, which had a movable table thereon, supplied with adjustable screws, used for the purpose of raising and lowering the same, as required by different classes of work; that it also had a gauge thereon, which was properly regulated by set screws; that the said saw was propelled by steam power, by means of a belt and pulley, which were connected with a shaft; that about the middle of said July, 1891, while plaintiff was so engaged at his machine, and in the line of his duty, he was, owing to the negligence and carelessness of the said defendant, struck on the chest by a piece of lumber, which was thrown upon him with great force from the said circular ripsawing machine, and inflicted upon him painful internal injuries, and disabled him from the performance of his usual labor; that he has, by reason of said injuries, been compelled to incur large expense for medicines and medical attendance, and has been since that time suffering great pain of body and mind in consequence; that plaintiff has been unable to perform any work, and has been permanently disabled from the performance of his usual vocation. Plaintiff further states that the said circular ripsawing machine causing said injury, as aforesaid, was by the negligence of defendant permitted to become out of repair, and was not reasonably safe for its uses, in this: that the gauge and the set screws thereon were out of repair, and defective; that the adjustable screws used for the purpose of raising and lowering the same were unfit for use, out of repair, and defective, — all of which was unknown to plaintiff at the time, but which defendant well knew, or by exercise of ordinary care on its part might have known; and plaintiff states that he was injured as the direct cause of defendant's negligence in any or all the particulars aforesaid. Plaintiff further states that a circular ripsawing machine is a dangerous machine, and that it requires experience and skill in the operator to operate the same with safety to others, but that at the time of the infliction of the injury, as aforesaid, the said ripsawing machine was operated by one Osburg, in defendant's employment, in the line of his duty; that said Osburg was permitted, through defendant's negligence, to operate the said machine; that he was incompetent for the performance of the labor he was doing, and was simply a bench carpenter, which defendant well knew, or by the exercise of ordinary care might have known, but which fact was unknown to plaintiff at the time; that the said Osburg was negligent in the operation of said machine at the time, in this: that he failed to raise the table thereof by the adjustable screws, as was necessary for the work he was doing; that he failed to use a notched shove stick, as necessary for that class of work; that he failed to adjust the set screws on the gauge thereof; and that the incompetency and negligence of said Osburg was the direct result of said injuries, inflicted as aforesaid, to which the defective and unreasonably unsafe condition of the said machine also directly contributed. Plaintiff therefore, by reason of the premises aforesaid, states that he has been damaged in the sum of twenty thousand dollars ($20,000), for which he asks judgment, with costs of suit." The defendant, in his answer, denied specifically the various allegations of the petition, and it contained also an averment that the condition of the ripsawing machine complained of was then and there well known to the plaintiff, and that he was guilty of negligence contributing to his injuries. The reply was a general denial.

The facts out of which the litigation arose, as disclosed by the record, are about as follows: The accident occurred in July, 1891, while plaintiff was a laborer in the service of defendant. At that time there was a ripsawing machine immediately adjoining, and a few feet from, the machine operated by plaintiff, which was used by the various workmen in that part of the mill, including plaintiff, as occasion might require. Plaintiff had worked in the same position for about five months before the accident, and during that time frequently used the machine which it is claimed caused the injury. This machine had a table about six feet long by three to four wide. The saw worked near the center of the table, lengthwise, but somewhat nearer one side of the table than the other. It was operated by a pulley underneath, connected with a shaft below the floor, which supplied the motive power for propelling the saw. There was a sliding gauge on the saw table, about 18 inches long, used for regulating the with of strips of lumber when being cut, which was attached to the table by means of a bolt which worked in a slot, which gauge when in position was parallel with the saw. At the time the accident happened, plaintiff was operating a molding machine near the ripsaw, and Osburg, a fellow employé, was using the saw, when a stick of pine wood seven-eighths of an inch in thickness, one and one-eighth of an inch in width, and about eighteen inches in length, was thrown from the saw, which struck plaintiff on the upper part of the chest near and to the right of the breastbone, and about the second and third ribs. The skin was not broken. The evidence tended to show that one of the set screws in the gauge was loose, and had been for some time; and when in this condition, as it was at the time of the accident, the saw would bind, and throw the piece. The plaintiff testified that he examined the ripsaw 5 or 10 minutes after the accident, and that the screw was loose and worn, and the saw bound. A piece of wood can only be thrown from the saw when it binds, or when dropped upon it. None of the witnesses saw the piece of pine which struck plaintiff leave the machine, but the evidence tended to show that it would not have been thrown if the gauge had not bound. At the time of the trial, plaintiff was suffering from pulmonary consumption. Other facts will be adverted to in the course of this opinion, as it may become necessary to do so.

It is contended by defendant that the petition fails to state a cause of action. The specific objections are that it does not set out the acts of negligence relied on with a reasonable degree of particularity; that they were negligently done; nor does it specify the act which it is claimed caused the injury, and allege that it was negligently or carelessly done. As there was no objection taken to the petition in the court below, every defect therein, if there be any, was cured by the verdict, unless it states no cause of action. The rule is that when a defendant pleads to the merits he thereby waives all objections to mere formal defects, and the only objections that...