Siebert v. Liggett & Myers Tobacco Co.
| Decision Date | 18 June 1925 |
| Parties | CATHERINE SIEBERT, Respondent, v. LIGGETT & MYERS TOBACCO COMPANY, a Corporation, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of City of St. Louis.--Hon. Robert W Hall, Judge.
AFFIRMED.
Judgment affirmed.
Jones Hocker, Sullivan & Angert for appellant.
(1) The rule is settled in Missouri that where the appliance furnished by the master is not complicated or dangerous there is no duty on the master to inspect it before using it and he has discharged his duty when he has purchased the same from a reputable manufacturer. Jewell v. Mfg. Co., 166 Mo.App. 566; Tallman v. Nelson, 141 Mo.App. 483; Cole v. Mining Co., 204 S.W. 199; Labatt's Master & Servant (2 Ed.), sec. 1055, p. 2782; 40 L. R. A. (N. S.) 1120. (2) The evidence is wholly insufficient to sustain a finding that the defendant failed to exercise ordinary care in furnishing the box in question to the plaintiff. There is no evidence that other persons in the same or similar circumstances inspected new boxes for splinters. There is no standard furnished by the evidence from which the jury could conclude that the defendant should inspect the boxes for splinters. Wendall v. C. & A. Ry. Co., 100 Mo.App. 560-561; Coin v. Lounge Co., 222 Mo. 506; Brands v. St. Louis Car Co., 213 Mo. 698; Minnier v. Ry. Co., 167 Mo. 119; Chrismer v. Bell Telephone Co., 194 Mo. 209; Knott v. Boiler & Sheet Iron Works, 299 Mo. 613. (3) Due care cannot be determined from one incident. The only evidence that the box was dangerous or from which the plaintiff could contend that the box should have been inspected was the fact of the injury. The jury cannot be allowed to speculate and set up a standard of care from the fact that one injury occurred in the use of a simple tool. Chrismer v. Bell Telephone Co., 194 Mo. 209.
Mark D. Eagleton, and Harry S. Rooks for respondent.
(1) The peremptory instruction to find for defendant was properly refused because the defendant was charged with knowledge of the condition of the box at the time it was furnished plaintiff, in so far as an inspection made with reasonable care would have shown, and the evidence justified the jury in finding that defendant was negligent in furnishing the box with the splinter in it. The jury would also be justified in finding that ordinary care required the defendant to inspect the box before furnishing it to plaintiff, because the evidence showed that the nature of plaintiff's work was such that she did not have an opportunity to guard against injury by any such defects in it. To furnish plaintiff with a reasonably safe box was "a nondelegable, direct, personal and absolute duty of the defendant corporation, from which nothing but performance could relieve it." Sneed v. Shapleigh Hdw. Co., 242 S.W. 696, 699; Adair v. K. C. Terminal Ry. Co., 282 Mo. 133; Eckhardt v. Wagner Elec. Mfg. Co., 235 S.W. 117, 119; Amis v. Standard Oil Co., 233 S.W. 195, 201; Hayes v. Sheffield Ice Co., 282 Mo. 446, 454, 455; Mitchell v. Polar Wave Ice & Fuel Co., 206 Mo.App. 271. (2) Defendant's instruction F was properly refused for the reasons above stated under point 1, and for the further reasons that it does not require the jury to find that the defendant exercised any care whatever in selecting the Mengel Company to purchase boxes from, nor to find that defendant knew that the Mengel Company was a reputable manufacturer of boxes, if it was, in fact, nor to find that the Mengel Company was a reputable manufacturer of boxes at and prior to the time that plaintiff was injured, nor to find that the Mengel Company had a good reputation for furnishing reasonably safe boxes, nor to find that the defendant did not have actual knowledge that the box in question was not reasonably safe. And the instruction was refused for the further reason that the evidence shows that the defendant did not rely upon the Mengel Company to furnish reasonably safe boxes, so that the instruction was wholly without support in the evidence. (3) Defendant's instruction C was properly refused because, for the reasons heretofore stated under point 1 the evidence justified the jury in finding that the defendant was negligent in failing to remove the splinter from the box before furnishing it to plaintiff. (4) Defendant's instruction D was properly refused because, for the reasons heretofore stated under point 1, defendant was obligated to warn plaintiff of the splinter which defendant negligently failed to remove from the box when it was furnished to plaintiff.
This is an action for damages for personal injuries, alleged to have been sustained by plaintiff while working at defendant's factory as a tobacco packer.
Plaintiff recovered judgment for $ 3000, and defendant appeals.
Plaintiff injured one of her fingers while handling tobacco boxes, by having her finger come in contact with a splinter on the inside of one of the boxes. The negligence counted upon in the petition was: (a) Negligent failure to furnish plaintiff a reasonably safe box; (b) failure to exercise ordinary care to inspect; (c) failure to remove the splinter from the box; and (d) failure to warn plaintiff.
The answer was a general denial, coupled with a plea of contributory negligence and assumption of risk.
The evidence offered on the part of the plaintiff discloses that she was thirty-three years of age, and resided with her mother in the city of St. Louis. She was working for defendant, and her work consisted of packing tobacco in boxes. In doing this work, plaintiff stood at a table. On this table plugs of chewing tobacco were placed to be packed in boxes. Each plug of tobacco was three inches wide, one foot long, and a little less than one-half inch in thickness. This tobacco was packed by plaintiff in wooden boxes. The dimension of these boxes was six inches wide, twelve inches long, and three inches deep. Sixteen plugs were placed in a box. The boxes were brought to plaintiff on a truck. Plaintiff had nothing to do with the work of loading the boxes on the truck or bringing them to the table at which she worked. When a truck-load of boxes would be brought to plaintiff they would be piled upon the truck to a height of about six feet. Plaintiff would take two boxes at a time from the truck by grasping the sides of the two boxes with her right hand. This was the method of performing the work, which was done hurriedly. The boxes when brought to plaintiff were new boxes from the Mengel Box Factory adjacent to the defendant's place of business. The boxes were new and none of them had been used. At the time plaintiff received her injury she had been working for the defendant about two weeks, and while engaged in her duties of packing tobacco she started to take some boxes from a truck-load which had just been brought to her table. She reached up and caught hold of two boxes in the manner aforementioned, as it was her duty to do in the performance of her work, and in catching hold of the two boxes one of her fingers was pierced by a splinter on the inside of one of the boxes. This was on a Saturday, and plaintiff worked until quitting time, which was twelve o'clock. In the afternoon the injured finger began to cause her pain, and continually grew worse until the next morning, when she went to her physician. The finger continued to grow worse and became more infected until the final result was a permanent injury to the middle finger in that it became stiff, and other fingers on her hand were so impaired as a result thereof that she has permanently lost more than fifty per cent. of the...
To continue reading
Request your trial