Shimp v. Woods-Evertz Stove Co.

• Decision Date: 07 July 1913
• Citation: 158 S.W. 864
• Parties: SHIMP v. WOODS-EVERTZ STOVE CO.
• Court: Missouri Court of Appeals

158 S.W. 864

SHIMP v. WOODS-EVERTZ STOVE CO.

Springfield Court of Appeals. Missouri.

July 7, 1913.

Rehearing Denied July 25, 1913.

1. MASTER AND SERVANT (§ 231) — INJURY TO SERVANT — DEFECTIVE MACHINERY — CONTRIBUTORY NEGLIGENCE.

An employé, operating a machine which has been repaired by the employer, may rely on the superior knowledge of the employer, and may believe that by the exercise of ordinary care he may operate the machine without injuring himself.

2. MASTER AND SERVANT (§ 205) — INJURY TO SERVANT — ASSUMPTION OF RISK.

An employé does not assume risks occasioned by his employer's negligence.

3. MASTER AND SERVANT (§ 286) — INJURY TO SERVANT — QUESTION FOR JURY — REPAIRS.

The degree of diligence required of an employer repairing a machine must be measured by the circumstances, the kind of machine, the risks incident to its use, and the hazard of the business, and the jury, considering these matters, must determine whether the employer in the first instance properly repaired a defect in a machine.

4. MASTER AND SERVANT (§ 243) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — RULES OF EMPLOYMENT — CUSTOMARY VIOLATION.

Where an employé operated a machine in the manner it had been operated for years, and in the manner other employés operated similar machines, the employer could not escape liability for injuries to the employé on the ground that he violated a rule of the employment governing the manner of operation, which had not been complied with.

5. MASTER AND SERVANT (§ 296) — INJURY TO SERVANT — EVIDENCE — INSTRUCTIONS.

Where, in an action for injuries to an employé, there was evidence that prior to the accident the adjustments of the machine at which he worked were defective, that the superintendent directed a coemployé to make repairs, and that the employé while operating the machine, after the repairs, was injured by the defect therein, the refusal to charge that if the employé appreciated the danger resulting from the defect in the machine and that he learned after the repairs that it was working defectively, there could be no recovery, unless he gave notice to the employer that the machine was again out of repair, and the employer did not repair it, was reversible error.

6. MASTER AND SERVANT (§ 235) — INJURY TO SERVANT — DEFECTIVE APPLIANCES — NEGLIGENT REPAIR — CONTRIBUTORY NEGLIGENCE.

Where an employer is guilty of negligence in repairing a machine, no duty devolved on the employé operating it to give notice to the employer of the failure of the machine to work properly after the repairs.

7. MASTER AND SERVANT (§ 235) — INJURY TO SERVANT — DEFECTIVE APPLIANCES — NEGLIGENT REPAIR — CONTRIBUTORY NEGLIGENCE.

Where repairs on a machine were not negligently made by the employer in the first instance, the employé thereafter operating the machine must notify the employer of its failure to properly work.

8. MASTER AND SERVANT (§ 287) — INJURY TO SERVANT — VICE PRINCIPAL — QUESTION FOR JURY.

Where, in an action for injuries to an employé operating a defective machine after it had been repaired by a coemployé, the evidence was conflicting as to the duties of the coemployé, and as to whether his duties required his supervision of the machinery and attention to any defect when notified by the employé, the question whether the coemployé was a vice principal, so that notice to him of a failure of repairs to make the machine safe was notice to the employer, was for the jury.

9. MASTER AND SERVANT (§ 185) — VICE PRINCIPAL — WHO IS.

An employé charged with the general duty of looking after and removing defects in machines which come under his observation, or of which he receives notice, is a vice principal, and notice to him of defects in machines is notice to the employer.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by John E. Shimp against the Woods-Evertz Stove Company. From a judgment for plaintiff, defendant appeals. Reversed, and remanded for new trial.

E. P. Mann and Jno. P. McCammon, both of Springfield, for appellant. George Pepperdine and Patterson & Patterson, all of Springfield, for respondent.

ROBERTSON, P. J.

This is an action to recover damages for an injury received by the plaintiff in the factory of the defendant, resulting in the loss of three fingers from his left hand. He recovered in a jury trial a judgment for $2,500, from which the defendant has appealed.

The defendant in its answer pleads a general denial and contributory negligence on the part of plaintiff, in that he knowingly put his hand in the place of danger where the descending die or plate, referred to in the plaintiff's petition, would crush it when it descended thereon, in permitting his hand to be where the machinery would strike it, and in causing the machinery to descend upon his hand by putting his foot upon the pedal by which it is adjusted. Assumption of the risk by the plaintiff is also alleged by the defendant in its answer. In behalf of the plaintiff the testimony discloses that the defendant was engaged in the business of manufacturing stoves, and the plaintiff was what is designated as a "machine man" and sheet metal worker, and had been so engaged for five or six years prior to the accident of which complaint is made. In the defendant's factory, run by electricity, were cutting and stamping presses, used to cut and shape the parts of a stove. One of these machines had been operated by plaintiff for three or four months prior to the accident. The machine consisted of a lower stationary die head made of iron and steel, with the top about three feet above the floor upon which the sheets were laid, and upon which descended another die head from above, with about an eight-inch stroke, and with sufficient force to cut and press the metal placed thereon in the desired shape. The upward and downward motion of the upper die was manipulated by means of clutches equipped with a cut-out which, when the foot of the operator was pressed on a pedal provided therefor, caused the top die to be placed in motion at the rate of about one stroke each second. When the machine is in proper repair and the foot removed from the pedal, the upper die ceases its operation, but for some time prior to the accident the adjustments of the machine at which the plaintiff was working had been defective, and the upper die had been at times descending after the foot was taken off the pedal. The superintendent had been notified of this defect, and on the morning of the accident the plaintiff made some suggestions about the repair of the machine. The superintendent did not adopt his suggestions, but directed one Reynolds to make a different repair. Reynolds and the plaintiff attempted to repair the machine in the manner designated by the superintendent, which the plaintiff told the superintendent would not be effective. This was early in the morning, about 9 or 10 o'clock. After this attempted repair had been made, and the plaintiff had gone back to work again, and while the plaintiff did not have his foot on the pedal, as he testified, the top die dropped without warning. Plaintiff informed Reynolds of this incident, but did not say anything to the superintendent, or at least he says he does not remember whether he told the superintendent or not. Plaintiff continued his work with the machine until about 4 o'clock in the afternoon, when the upper die again descended, after plaintiff, as he says, had taken his foot off of the pedal, and caught his hand and inflicted the injury complained of in this suit. It was the custom of all of the employés in the defendant's plant to place these sheets of iron upon the die with their hands. After the upper die had descended and performed its operation, the metal remaining thereon was cut of the same dimensions as the die, and the employés used their hands to remove the same. One operator would turn out between 2,500 and 4,000 stamped sheets in a day.

Reynolds testified in behalf of the plaintiff, and stated that he attended to the machinery and the electrical appliances, that he had been there three years prior to the accident, and that it was his duty to repair the machinery when it got out of repair, and if told to do so by the foreman. He also stated that he had known this machine to make improper revolutions and then stop, at times "too numerous to mention." He says that he told the superintendent that the adjustment of the clutches needed a new wheel, but that the superintendent told him to make the repair as directed, which was entirely different from the suggestion offered by Reynolds. Other witnesses testified without qualification that Reynolds was the man who had charge of the machine work; that it was his duty to repair these machines when they were out of order, and that he looked after the repairing of the machines. Another witness testified that "Reynolds never did anything without the orders of" the superintendent, and that he was under the orders of the superintendent. The superintendent testified in behalf of defendant that Reynolds was "there to fix up anything that the boys made any complaint about," and if he (the superintendent) was not there, they made complaint to Reynolds and he fixed it. The superintendent also testified that early in the day on which plaintiff was injured he went around to where plaintiff was working, and told plaintiff to keep his hands out from between the dies in...