Simon v. St. Louis Brass Mrg. Co.

Decision Date06 April 1923
Docket NumberNo. 23128.,23128.
Citation298 Mo. 70,250 S.W. 74
PartiesSIMON v. ST. LOUIS BRASS MFG. CO.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by Otto R. Simon against the St. Louis Brass Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of remittitur.

Kelley, Starke & Moser and Chas. E. Morrow, all of St. Louis, for appellant.

Foristel & Eagleton, of St. Louis, for respondent.

RAGLAND, J.

This is an action for personal injuries, based on an alleged negligent failure to guard a dangerous machine in obedience to the mandate of the statute. The injury occurred October 29, 1919, while plaintiff, pursuant to his employment by defendant, was working at a machine in its manufacturing establishment.

The machine was a stamping press operated by electric power. It had an upper and lower die, the lower die remaining stationary, and the upper die descending and ascending automatically while the machine was in operation. There was a "blank holder" through which the upper die moved immediately before coming into contact with the metal to be stamped. The upper die moved up and down seven times per minute through a space of from ten to twelve inches. The blank holder descended a little ahead of the upper die, and its function was to hold the material in place on the lower die while the upper die stamped it. In the center of the lower die there was a device called a knock-out pin, or an ejector, which operated automatically and which served to remove from the lower die the metal after it had been pressed and shaped. The plaintiff stood in front of the machine and placed the material on the lower die, and a fellow workman stood behind it and took the material away after it had been pressed and loosened by the ejector.

At the time the plaintiff was injured he was engaged in putting beading or ornamental work on pieces of metal which had been pressed into the shape of a pie pan. The pans were" stacked on the base of the machine on his left; on his right there was a small tub containing a solution of oil and water. Owing to the fact that the pans had been dipped into the solution at the time they were shaped, they adherad, and it was necessary to use a screwdriver or similar appliance to separate them. In putting them through the machine the second time for the purpose of beading them, it was necessary, in order to keep the dies lubricated, that every other pan be again dispped into the solution. Plaintiff's method of doing the work was this: He would first loosen a pan employment four months after the date of his with a screwdriver held in his right hand, dip the pan into the solution, transfer it to his left hand and with that hand place it on the lower die. As soon as he had so placed the pan, he immediately picked up another and had it ready for placing as soon as its predecessor had been removed. On the occasion referred to, while he was attempting to place one of these pans on the lower die, his hand was caught and crushed by the upper die and blank holder in their descent. The machine was not equipped with any device intended to protect the operator from mishaps of this kind.

One Ross, called as a witness by plaintiff, testified that he was a tool maker and designer, that he had had 32 years of experience around machinery of all descriptions, including presses similar in design to the one in question, and that such machines could be safely and securely guarded without interfering with their practical operation. After describing devices of various designs which he said were used to guard presses similar to the one occasioning plaintiff's injury, he testified op cross-examination in part as follows:

"The Court: Suppose he has his hand all the way in there and these things close up. How does it knock his hand out? A. It pushes his hand down; when the guards come down it pushes it out of the way. Some guards are controlled so they shove them out of the way, and they are padded so it won't injure you. They can shove on an angle.

"The Court: It would push his hand out? A. You bet you.

"Q. Come here and explain how that works, how that guard you say will push your hand out after setting the pan there. (Witness standing in front of wooden model.) A. Take it for granted that the plunger is up and the guard is in this position. When the plunger comes down, this guard precedes the plunger and pushes your hand away before the upper die strikes the lower die; gives you time.

"Q. It serves only as a warning—it doesn't pull it out? A. No, sir; it pushes it away. "Q. It slaps your hand and notifies you, don't it? A. Give me a blank, and I will demonstrate it for you.

"Q. Here is a pan. A. The other one will do. (Witness demonstrating.) I shove that pan in, I have to get it in in a certain time. I won't hold my hand there; if I do, this guard comes and pushes my hand away.

"Q. You are assuming that with this size of pan and this size of model, it would push it away. Suppose these parts were just twice as big as that? A. That doesn't make any material difference.

"The Court: It would all be in proportion? A.:t would be in proportion.

"Q. You would not be able to get them in there at all—that is only the warning to the operator to get his hand out? A. It is a warning and pushes his hand away.

"Q. Where did you see a guard? A. It is used in every up-to-date shop.

"Q. Here? A. Wagner Electric Company, Century Electric Company, and Monarch Weatherstrip Company.

"Q. On a press like this? A. Similar presses."

On direct examination he further testified:

"Q. These places you mentioned a while ago in cross-examination—those factories are all in the city of St. Louis? A. Yes, sir.

"Q. And the character of guard you speak about has been on the market and used for a number of years? A. Some are on the market, and some are specially designed.

"Q. How many years have they been on the market? A. Some certain guards for 10 or 15 years.

"Q. And those particularly you mentioned here? A. yes, sir."

Defendant offered no evidence with respect to the possibility or practicability of equipping the machine with a guard.

The petition contained ten specific assignments of negligence, all but one of which were withdrawn from the jury by appropriate instructions. The one on which the case was submitted was the failure to discharge the alleged statutory duty to safely and securely guard the machine. The answer was a general denial and a plea of contributory negligence.

At the conclusion of all the evidence, the court refused a request on the part of defendant for a directed verdict. The principal instruction given for plaintiff was as follows:

"The court instructs the jury that, if you find and believe from the evidence that on the 29th day of October, 1919, plaintiff was in the employ of the defendant at its plant referred to in the evidence, and that his ordinary duties required him to work at a large press used for the purpose of beading or stamping various kinds of pans and other materials, and that on said day, while the plaintiff was attempting to place a pan on the lower die of said press, his left hand Was caught and injured by reason of the upper die of said press or blank holder descending and coming in contact with his said left hand; and if you further find and believe from the evidence that at said time and prior thereto said machine was constantly in operation, and that the said press and particularly the upper die, and the blank holder, were so operated as to be dangerous to the plaintiff while engaged in his ordinary duties, and that it was possible for the defendant to safely and securely guard said press, so as to have prevented plaintiff's hands from being caught by the upper die, or blank holder, while descending, If you find plaintiff's hand was so caught, without interfering with the practical operation of said press or of said upper die or blank holder; and if you further find that the defendant failed to safely and securely guard said press so as to prevent injury to plaintiff while engaged in his ordinary duties and that in so failing, if you do so find, ...

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