Shepard v. Century Electric Company

• Decision Date: 05 July 1927
• Parties: COLIAN SHEPARD, RESPONDENT, v. CENTURY ELECTRIC COMPANY, A CORPORATION, APPELLANT. *
• Court: Missouri Court of Appeals

299 S.W. 90

220 Mo.App. 1152

COLIAN SHEPARD, RESPONDENT, v. CENTURY ELECTRIC COMPANY, A CORPORATION, APPELLANT. *

Court of Appeals of Missouri, St. Louis

July 5, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon. Robert W. Hall, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Holland Rutledge & Lashly and Watts & Gentry for appellant.

(1) The court erred in overruling the demurrer to the evidence at the close of the entire case. The demurrer should have been sustained because there was a total failure of proof of each one of the grounds of negligence alleged in plaintiff's petition on pages 5 and 6, which were all the grounds alleged. (a) There was no evidence to support the allegation of failure to guard, for plaintiff's evidence tended to show that it was not possible to guard the machine as now constructed, but that its structure could be changed and a knockout could be put in, and then a guard would not be needed. Such evidence did not tend to support the allegation of negligence in violating the guarding statute. Phillips v. A. C. & F., 274 S.W. 963; Stid v. Railroad, 236 Mo. 382, 399; Courter v. Merc. Co., 266 S.W 340. (b) The allegation of negligently failing to furnish a stick or other appliance with which to knock the finished shells from the machine was based entirely on the theory that defendant had actual or constructive notice that scraps of metal were likely to remain attached to a field shell that was trimmed, and to catch the fingers of the operator. There was no evidence to sustain that allegation. See authorities 1, (a). (c) The allegation of negligently ordering the plaintiff to use his fingers to remove the shells was based upon the same theory, and the evidence did not tend to support it. See authorities, 1 (a). (d) The allegation of negligently failing to warn the plaintiff of the danger of using his fingers to remove shells was based upon the same idea of actual or constructive notice of the likelihood of scraps of metal clinging to the shells that had been trimmed, and that allegation also failed because of lack of evidence to support it. (2) (a) The court erred in giving instruction No. 1 at the request of the plaintiff. There are two errors in this instruction. First, it permitted the jury to find that the defendant knew or by the exercise of ordinary care could have known that pieces of scrap metal were likely to remain upon some of the field shells after they had been trimmed and that it was not reasonably safe for that reason for plaintiff to use his fingers to remove the shells and that defendant with that knowledge negligently ordered the plaintiff to use his fingers for that purpose and thereby caused his injury. There was no evidence on which to base that portion of the instruction permitting the jury to find actual or constructive knowledge on defendant's part of such danger, and, therefore, the instruction was erroneous. Boles v. Dunham, 208 S.W. 480; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Kuhlong v. W. L. & T. Co., 271 S.W. 788 (Mo. Sup.). Second. This instruction wholly failed to submit to the jury as a question of fact whether or not pieces of scrap metal were likely to remain upon some of said field shells after they had been trimmed and whether it was not reasonably safe for plaintiff to use his fingers to remove said field shells from the revolving shaft on that account, but assumed the existence of those facts and merely required the jury to find that the defendant had knowledge thereof or would have had such knowledge by the exercise of ordinary care and with such knowledge negligently ordered the plaintiff to use his fingers to remove the shells. Therefore, this instruction violated the rule that facts material to plaintiff's case must not be assumed as true in an instruction given at plaintiff's request. It undoubtedly assumed the fact that scraps of metal were likely to remain attached to the shells when cut and that plaintiff was likely to be injured thereby, although such facts were not admitted, and even though there was no evidence tending to prove them. Such an assumption of facts in such instructions has been expressly condemned in the following cases: Rey v. Plumb, Inc., 287 S.W. 783, 785; Boland v. Ry. Co., 284 S.W. 141, 144; Reel v. Inv. Co., 236 S.W. 43, 47; Roman v. King, 233 S.W. 161; Ganey v. K. C., 259 Mo. 654, 663-4. (b) The court erred in giving instruction No. 2 at the request of the plaintiff. There was no evidence on which to base that portion of the instruction which permitted the jury to find that it was possible for the defendant to safely and securely guard the machine without interfering with the practical operation thereof, the evidence offered by plaintiff tending to show that it was not possible to apply such a guard without interfering with the practical operation of the machine, but that the structure of the machine could be so changed that a guard would not be necessary, which evidence was wholly insufficient to support a finding by the jury that the machine could be safely and securely guarded. See authorities, 2 (a), (1).

Jesse T. Friday for respondent.

(1) A general demurrer to the evidence was properly overruled where the petition alleges several assignments of negligence, and there was evidence tending to prove some of them. Morris v. Wagner Elec. Mfg. Co., 243 S.W. 424; Torrance v. Prior, 210 S.W. 430; Shapiro v. Am. Surety Co. of N. Y., 259 S.W. 502; Leahy v. Winkle, 251 S.W. 482. (2) In passing on a demurrer to the evidence, the respondent is entitled to the benefit of every reasonable inference that a fair-minded jury of ordinary intelligence might legitimately draw from the evidence. Burton v. Holman, 231 S.W. 630; Burtch v. Wabash Ry. Co., 236 S.W. 338; Keppler v. Wells, 238 S.W. 425; Anderson v. White, 235 S.W. 834; W. J. Howey Co. v. Cole, 269 S.W. 955; Karages v. Union Pac. Ry. Co., 232 S.W. 1100; Moffatt v. Link, 229 S.W. 836. (3) The guarding statute is highly remedial and must be liberally construed so as to effectuate the true intent and meaning thereof. Austin v. Bluff City Shoe Co., 158 S.W. 709; Cole v. North Am. Lead Co., 240 Mo. 247. (4) Under the statute, no particular method of guarding is prescribed. The question is whether the machine could be guarded without interfering with the practical operation thereof. To "guard" a machine is to provide it with a "guard;" that is, any device, fixture or attachment designed to protect or secure against injury from it. Simon v. St. Louis Brass Mfg. Co., 298 Mo. 70, 250 S.W. 74; Stovall v. Burkhart, 261 S.W. 936; Bressler v. Laughlin, 168 Ind. 38, 79 N.E. 1033. (5) In action against master for injury by machinery not guarded in accordance with statute requiring guarding of machinery, it is no defense to show that other manufacturers engaged in the same line of business did not guard their machines, for mere wrongful custom will not excuse the defendant. Austin v. Bluff City Shoe Co., 158 S.W. 709. (6) Instruction which requires the jury to find "that defendant knew, or by the exercise of ordinary care could have known, that certain facts existed" does not assume those facts to exist, but, in effect, requires the jury to find that such facts do exist. McMillan v. Bausch, 234 S.W. 835; Montgomery v. Hammond Packing Co., 217 S.W. 867; Davidson v. St. Louis Transit Co., 109 S.W. 583; Brady v. Railroad Co., 206 Mo. 509, 102 S.W. 978; Geary v. Railroad, 138 Mo. 251; Van Leer v. Wells, 263 S.W. 493; Evans v. General Explosives Co., 239 S.W. 487, 293 Mo. 364; Steigleder v. Lonsdale, 253 S.W. 487; Henderson v. Heman Constr. Co., 199 S.W. 1045.

SUTTON, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

This is an action to recover damages for personal injuries received by the plaintiff while in the employ of defendant at its manufacturing plant in the city of St. Louis. The cause was tried before the court, and a jury, resulting in a verdict and judgment in favor of plaintiff for $ 1500, from which judgment the defendant appeals.

Plaintiff sustained the injuries for which he sues while working at a machine known as a cutter or trimmer. The machine consisted of two solid iron shafts, one above the other, and rested on a pedestal to which it was bolted. It was provided with a foot treadle and hand lever. The operator stood in front of the machine. The machine was used for cutting or trimming metal cups, called field shells. The upper shaft was provided with a circular cutter. The left end of the lower shaft was provided with an arbor, upon which the cups or field shells to be cut or trimmed were placed. The operator, after placing a shell on the arbor, pressed down on the foot treadle or hand lever and thus brought the upper shaft down to a point where the circular cutter would come in contact with the shell. The machine was operated by electrical power. The shafts revolved continuously. The shells were placed on the arbor and removed therefrom by the operator with his left hand. At the time plaintiff was injured he was attempting to remove a shell from the arbor after the shell was trimmed. There remained attached to the shell after it was trimmed a piece of scrap metal which the cutter had failed to cut entirely from the shell. In so attempting to remove the shell, plaintiff's index finger was caught by the piece of scrap metal so remaining attached to the shell, and was thereby drawn between the revolving shafts, and injured.

The petition assigns negligence on the part of defendant in the following respects: (1) In negligently failing to safely and securely guard the machine; (2) in negligently failing to provide plaintiff with a suitable appliance with which to knock, push, or take the field shells from the...