Smith v. Forrester-Nace Box Company

• Decision Date: 26 February 1906
• Citation: 92 S.W. 394,193 Mo. 715
• Parties: SMITH v. FORRESTER-NACE BOX COMPANY, Appellant
• Court: Missouri Supreme Court

92 S.W. 394

193 Mo. 715

SMITH v. FORRESTER-NACE BOX COMPANY, Appellant

Supreme Court of Missouri

February 26, 1906

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed.

Harkless Crysler & Histed for appellant.

(1) The evidence failed to show any negligence on the part of defendant. (2) The mere failure to cover the rollers with a shield did not establish negligence per se, or show that it was the proximate cause of plaintiff's injury. McGuerty v. Hale (Mass), 36 N.E. 682; Carroll v Williston (Minn.), 46 N.W. 353. (3) A failure to instruct the servant as to dangers of a machine, which are obvious, does not constitute negligence. Nugent v Milling Co., 131 Mo. 241; Herbert v. Boot & Shoe Co., 90 Mo.App. 305; Jones v. Roberts, 57 Ill.App. 56; Doolittle v. Pfaff, 92 Ill.App. 301; Groth v. Thomann, 86 N.W. 178. (4) Plaintiff was guilty of negligence precluding his right of recovery. Doerr v. Brewing Ass'n, 176 Mo. 574; George v. Mfg. Co., 159 Mo. 333; Meily v. Railroad, 81 S.W. 639; Richardson v. Mesker, 171 Mo. 667. (5) Plaintiff having voluntarily attempted to remove the obstruction from the knives while the rollers were in motion, instead of stopping them, is bound by the consequences resulting from his choice of the more dangerous of the two courses of procedure which were open to him. Moore v. Railroad, 146 Mo. 572; Palmer v. Kinloch & Co., 91 Mo.App. 106.

L. B. Sawyer and Porterfield & Conrad for respondent.

(1) The petition states a cause of action and defendant makes no objection in its brief and argument on that score. The allegations of negligence in the petition were abundantly proven. The evidence on the part of plaintiff thoroughly established defendant's negligence in not furnishing plaintiff with reasonably safe machinery about which to work in the performance of his duties, and as to the failure of defendant to warn or instruct plaintiff how to unclog the planer, defendant knowing the plaintiff to be inexperienced and untutored. Sec. 6433, R. S. 1899; Lore v. Mfg. Co., 160 Mo. 621; Bair v. Heibel, 103 Mo.App. 633; Nichols v. Plate Glass Co., 126 Mo. 55; Curtis v. McNair, 173 Mo. 270; Porter v. Railroad, 71 Mo. 71; Bowen v. Railroad, 95 Mo. 276; Hamman v. Coal & Coke Co., 156 Mo. 243; Doyle v. Trust Co., 140 Mo. 15; Hamilton v. Mining Co., 108 Mo. 364; Henry v. Railroad, 109 Mo. 488; Wheeler v. Mfg. Co., 153 Mass. 294; Ertz v. Pierson, 86 N.W. 680; Verdelli v. Gray Harbor, 115 Cal. 517; Jarvis v. Wrench Co., 177 Mass. 170; Laundry Co. v. Crawford, 13 Am. Neg. Rep. 355; Atkins v. Merrick, 142 Mass. 431. (2) The shield was broken off from its place on the top back roller two or three months before plaintiff was injured and allowed to remain off until after the injury occurred. It was clearly possible and practicable to guard the back rollers as they were guarded in the construction of the planer. The failure of defendant to replace the shield when it was broken off and keep it replaced is, under section 6433, Revised Statutes 1899, negligence per se. Lore v. Mfg. Co., 160 Mo. 621; Bair v. Heibel, 103 Mo.App. 633; Colliott v. Mfg. Co., 71 Mo.App. 171. (3) The question of contributory negligence was, under the evidence in this case, and the law of this State, a question for the jury. Cole v. Railroad, 183 Mo. 81; Pauck v. St. Louis Beef & Provision Co., 159 Mo. 467; Hamman v. Coal & Coke Co., 156 Mo. 243; Bender v. Railroad, 137 Mo. 240; Weller v. Railroad, 120 Mo. 649; Hamilton v. Mining Co., 108 Mo. 365; Dean v. Woodenware Works, 106 Mo.App. 167; Palmer v. Kinloch Tel. Co., 91 Mo.App. 106; Herbert v. Boot & Shoe Co., 90 Mo.App. 305; Ingerman v. Moore, 90 Cal. 410; Evans Laundry Co. v. Crawford, 13 Am. Neg. Rep. 355; Jarvis v. Wrench Co., 177 Mass. 170; Atkins v. Merrick, 142 Mass. 431; Ertz v. Pierson, 86 N.W. 680; Wheeler v. Mfg. Co., 153 Mass. 294; Norris v. Packing Co., 17 Am. Neg. Rep. 48. (4) Defendant also pleaded assumption of risk on the part of plaintiff. The fact that plaintiff was not engaged at the time he was injured in the work he was employed to do makes that defense ineffective. To say the least, the question was properly submitted to the jury. Pauck v. Beef & Provision Co., 159 Mo. 467; Settle v. Railroad, 127 Mo. 336; Herdler v. Stove & Range Co., 136 Mo. 17; Wendler v. People's Co., 165 Mo. 527; Blanton v. Dold, 109 Mo. 64; Hurst v. Railroad, 163 Mo. 309; Hamman v. Coal Co., 156 Mo. 232; Palmer v. Kinloch Tel. Co., 91 Mo.App. 106; Shore v. A. B. Co., 86 S.W. 905; Dean v. Woodenware Works, 106 Mo.App. 167; Wheeler v. Mfg. Co., 153 Mass. 294; Keegan v. Kavanaugh, 62 Mo. 232. (5) The defective or unsuitable condition of the planer which resulted in its frequently choking up and requiring unclogging, together with the absence of the shield, was the proximate cause of the injuries to plaintiff. Lore v. Mfg. Co., 160 Mo. 608; Musick v. Dold Packing Co., 58 Mo.App. 322; Bassett v. St. Joseph, 53 Mo. 290. (6) It was the hidden and unexpected danger of the shooting of the board toward and between the back rollers that proximately caused plaintiff's injuries. The hidden danger hurled his hand between the rollers. See cases cited to point 5. (7) The defendant knew that plaintiff was totally inexperienced and uninstructed in the matter of working with a planer and that the planer was a dangerous piece of machinery. It was therefore the legal duty of defendant to instruct plaintiff as to the proper method of unclogging the planer and warning him of the dangers connected therewith. Nichols v. Plate Glass Co., 126 Mo. 55; Curtis v. McNair, 173 Mo. 270; Pauck v. St. Louis Beef & Provision Co., 159 Mo. 467; Dean v. Woodenware Works, 106 Mo.App. 167; Evans Laundry Co. v. Crawford, 13 Am. Neg. Rep. 355; Thomas Jaroszeski v. Mfg. Co., 8 Am. Neg. Rep. 481; Wheeler v. Wason Mfg. Co., 153 Mass. 294; Atkins v. Merrick, 142 Mass. 431; Jarvis v. Wrench Co., 177 Mass. 170; Hamilton v. Mining Co., 108 Mo. 364. (8) Plaintiff being inexperienced and uninstructed by defendant in the matter of unclogging the planer, he employed the same methods as were used by the experienced men in defendant's factory and the methods that were customary therein and tacitly approved by the foreman who was present every few minutes superintending the work. Under the circumstances the court could not hold, as a matter of law, that plaintiff was guilty of contributory negligence. The same applies to the fact that it was customary to unclog the planer while it was running. It was the custom and practice in defendant's factory to unclog the planer while it was running, except only when it was clogged up so that it could not be cleaned out without stopping it. See cases cited to points 5 and 7. (9) All the witnesses agreed and the defendant concedes that if the shield had been in its place plaintiff's hand and arm would not have been injured. Witness Kline was competent, by reason of his long experience, to testify as to the purpose of the shield and his evidence upon that point was properly admitted. That evidence could have had very little, if any, influence with the jury, however, because it was conceded that if the shield had been in its place the injuries would not have occurred, and, more particularly, because the jury personally inspected the planer with the shield off and on. Doyle v. Trust Co., 140 Mo. 20.

MARSHALL, J. Brace, C. J., Gantt, Burgess, Fox and Lamm, JJ., concur; Valliant, J., dissents.

OPINION

In Banc

MARSHALL J. --

This is an action for ten thousand dollars damages for personal injuries received by the plaintiff on the 31st of December, 1901, while in the employ of the defendant as a helper in operating a planer used by the defendant in manufacturing boxes. The plaintiff recovered a judgment of seven thousand dollars, from which the defendant, after proper steps, appealed.

THE ISSUES.

The petition after alleging the corporate capacity of the defendant and the fact that the plaintiff was engaged as a helper in operating a planer in the defendant's factory charges: "That the said planer was defective and out of repair in this, to-wit: the shield which acts as a protection to the operator and helper was broken off and had been off for at least two months prior thereto; that said machine was so defectively constructed and out of repair that it would clog up when used in planing short, thin lumber, which condition of said machinery was unknown to plaintiff;" that on the day of the accident by reason of its defective condition, the planer became clogged up with the short, thin lumber, and it was the duty of the plaintiff, in the exercise of his employment, to clean out the same; that in doing so plaintiff, in the exercise of ordinary care and with no fault on his part, took hold of a piece of lumber, and by reason of the defective condition of said planer and the absence of the aforesaid shield, plaintiff's left hand came in contact with the said planer, and was greatly injured.

The negligence charged in the petition is: "First, that defendant was careless and negligent in furnishing plaintiff with machinery which was, on December 31, 1901, and had been for a long time prior thereto, in a dangerous and defective condition, as hereinbefore stated, which defects were known or by the exercise of ordinary care might have been known, to defendant. Second, that defendant was negligent and careless in not warning plaintiff of the danger in connection with said work and said defective machine, knowing plaintiff to be inexperienced in such work, and that plaintiff did not know of said defect in said machinery. Plaintiff says that he is not able to state more definitely or with more certainty than is hereinbefore stated, the defective condition of said planer or the time, place and circumstances, when,...