Shimp v. Woods-Evertz Stove Company

• Decision Date: 28 July 1913
• Parties: JOHN E. SHIMP, Respondent, v. WOODS-EVERTZ STOVE COMPANY, Appellant
• Court: Missouri Court of Appeals

158 S.W. 864

173 Mo.App. 423

JOHN E. SHIMP, Respondent, v. WOODS-EVERTZ STOVE COMPANY, Appellant

Court of Appeals of Missouri, Springfield

July 28, 1913

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

Reversed and remanded.

E. P Mann and Jno. P. McCammon for appellant.

(1) Plaintiff must show, to recover: First, a defective machine or appliance; second, knowledge of such defective machine or appliance on the part of the master, or the existence of such defective condition for such a time as would create a presumption of such knowledge, and third, a lack of knowledge on the part of plaintiff of such defect. Traner v. Mining Co., 148 S.W. 70; Beach, Contributory Negligence, sec 140; Schall v. Cole, 107 Pa. St. 1; Week v. Mill Co., 29 P. 215; Steinhauser v. Spraul, 127 Mo 562; Lucey v. Oil Co., 129 Mo. 40; Epperson v. Cable Co., 155 Mo. 346; Glasscock v. Dry Goods Co., 106 Mo.App. 657. (2) On plaintiff's testimony the machine used by him was so obviously dangerous that injury was inevitable as he operated it and in continuing its use he assumed the risk. Holmes v. Brandenbaugh, 172 Mo. 65; Huhn v. Railroad, 92 Mo. 447; Soeder v. Railroad, 100 Mo. 681; Holloran v. Iron Co., 133 Mo. 476. (3) It is the duty of the plaintiff in the operation of the machine to adopt that method of removing sheets which was safe rather than the dangerous method, else he is guilty of contributory negligence. Newport News Co. v. Beaumeister, 47 S.E. 823; Streets Ex'x v. Railroad, 45 S.E. 285; Powers v. Gas & Electric Co., 42 S.E. 296; Larson v. Knapp, Stout & Co., 73 N.W. 992; Whaley v. Coleman, 112 Mo.App. 594; Railroad v. Swift, 72 N.E. 740; Richmond & D. R. Co., v. Bivens, 15 So. 517; Lucey v. Oil Co., 129 Mo. 41; Smith v. Box Co., 193 Mo. 733, 92 S.W. 394; Traner v. Mining Co., 148 S.W. 73. (4) Where a master has promulgated a rule to govern the conduct of employees and a servant with notice violates it and as a result is injured he cannot recover; or if his injuries are the result of disobedience of orders he is guilty of contributory negligence. 2 Bailey Pers. Inj., p. 1369; Mattrass Co. v. Ostergard, 99 N.W. 2295; Crawford v. Railroad, 64 S.E. 590; Stewart v. Carpet Co., 50 S.E. 562.

George Pepperdine and Patterson & Patterson for respondent.

(1) A master is bound to use reasonable care in furnishing and keeping in repair structures and appliances to be used by the servant. Klebe v. Distilling Co., 207 Mo. 480; Coombs v. Const. Co., 205 Mo. 367; Kremer v. Mfg. Co., 120 Mo.App. 247. (2) Before contributory negligence will defeat recovery for negligence personal injury the danger must be so obvious that an ordinarily prudent man would not assume the situation. Mitchell v. Railroad, 112 S.W. 291. (3) The mere fact that plaintiff knew of the defect in the machine and continued to work upon the same does not preclude the right of recovery on the ground that plaintiff was guilty of contributory negligence. Harriman v. Kansas City Star Co., 81 Mo.App. 129; Herbert v. Boot & Shoe Co., 90 Mo.App. 305; Morgan v. Mining Co., 141 S.W. 735; Corby v. Tel. Co., 231 Mo. 417; Jewell v. Bolt & Nut Co., 231 Mo. 176. (4) A servant does not assume risks arising from the negligence of the master. Morgan v. Railroad, 136 Mo.App. 337; King v. Railroad, 143 Mo.App. 279; Kile v. Light & Power Co., 149 Mo.App. 354; Holman v. Iron Co., 152 Mo.App. 672; Trent v. Printing Co., 141 S.W. 437. (5) It is only in a case concerning which reasonably prudent men cannot fairly differ that the court may declare a plaintiff guilty of contributory negligence as a matter of law. Coombs v. Kirksville, 134 Mo.App. 645; Nagel v. Railroad, 75 Mo. 653; Hulin v. Railroad 92 Mo. 440; Carnovski v. Transit Co., 207 Mo. 263; Smith v. Kansas City, 125 Mo.App. 150, 154. (6) While the violation of a known rule of the master made for the employees' safety would usually bar a recovery, yet where such rule is habitually violated, to the knowledge of the employees and the master, or has been violated so frequently and openly, and for such a length of time that the employer could by the use of ordinary care have ascertained its nonobservance, it will be considered waived by the master, and the servant will not be bound thereby. Smith v. Railroad, 61 S.E. 575; Sissel v. Railroad, 214 Mo. 515. (7) Contributory negligence must be pleaded to be available as a defense. Donovan v. Railroad, 89 Mo. 147; Keitel v. Railroad, 28 Mo.App. 657; Kein v. Railroad, 29 Mo.App. 53; Hudson v. Railroad, 101 Mo. 13.

ROBERTSON, P. J. Sturgis, J., concurs. Farrington, J., not sitting.

OPINION

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 $ 2500, 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 cutout 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 nine or ten 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 four 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 employees 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 employees used their hands to remove the same. One operator would turn out between 2500 and 4000 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...