Sneed v. Shapleigh Hardware Co.

• Decision Date: 06 June 1922
• Docket Number: No. 17207.,17207.
• Citation: 242 S.W. 696
• Parties: SNEED v. SHAPLEIGH HARDWARE CO.
• Court: Missouri Court of Appeals

242 S.W. 696

SNEED v. SHAPLEIGH HARDWARE CO.

No. 17207.

St. Louis Court of Appeals. Missouri.

June 6, 1922.

Rehearing Denied June 20, 1922.

Appeal from St. Louis Circuit Court; O. Hugo Grimm, Judge.

"Not to be officially published."

Action by Thomas W. Sneed against the Shapleigh Hardware Company. Verdict and judgment for plaintiff, and the defendant appeals. Affirmed.

M. U. Hayden and John P. Griffin, both of St. Louis, for appellant.

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

ALLEN, P. J.

This is an action for personal injuries sustained by plaintiff while in the employ of the defendant corporation as its servant, alleged to have been caused by the defendant's negligence. The trial below, before the court and a jury, resulted in a verdict and judgment in favor of plaintiff for the sum of $7,500, and the case is here on defendant's appeal.

On August 19, 1919, plaintiff, a man 52 years of age, was in the employ of the defendant hardware company as a packer, working on the fourth floor of a building occupied by defendant in the city of St. Louis. While he was lifting a box from beneath a table or counter the little finger of his right hand was pierced by a nail protruding within the box, resulting in a serious injury.

Plaintiff had been in the employ of the defendant about two months at the time of his injury. His regular hours of employment were from 7 o'clock in the morning until 5:30 in the afternoon, but at defendant's request he was working overtime, and was injured about 7 o'clock in the evening. In the room in which he worked were long tables upon which the packing was done, about six feet in width with spaces or aisles between them of about the same width. Plaintiff was working in aisle No. 24; and the box containing the nail which caused plaintiff's injury was under the table immediately north of that aisle. Plaintiff testified that there were three lights in that "section," above aisles 21, 23, and 25, respectively; that there was no light over aisle 24; that it was very dark about this aisle; and that the lights threw but little reflection under the table. According to plaintiff's testimony, the box containing this protruding nail was one that had been previously used— one that had been received by the defendant in some shipment made to it. It was made of dressed pine lumber an inch thick, and was termed a heavy box. On the morning of the day of plaintiff's injury a man in defendant's employ, whose duty it was to bring the boxes to plaintiff's department, brought in this box and placed it beneath the table on the north side of the aisle in which plaintiff was working, and called plaintiff's attention thereto, saying that it was a good box if plaintiff should need a heavy box. The nail by which plaintiff was injured had been driven into one side of a box at the top thereof, about six inches from one corner of the box, in a slanting direction, so that it protruded about one-half inch within the bog at a point about 2½ or 3 inches below the top of the box. When plaintiff undertook to lift the box from beneath the table, he took hold of the side thereof which contained this nail with his right hand, having his thumb on the outside and his fingers on the inside of the box; and his little linger came in contact with and was pierced by the protruding end of the nail.

The boxes used by plaintiff for packing defendant's wares for shipment were prepared in another part of defendant's establishment. Plaintiff's testimony, much of it developed on cross-examination, is that, though he was equipped with a nail puller, as well as other appliances, he had never removed nails from boxes prior to that time except to remove nails from lids or parts of lids that were fastened upon the boxes furnished him; that for the most part the boxes furnished him were new boxes, but that from time to time second hand boxes which had been received by defendant in inbound shipments would be placed beneath the tables for his use, but that he had never known such boxes to contain any nails except in lids or parts of lids fastened thereon. And he said that he was not supposed to remove nails from boxes at all unless they were in the lids. A portion of his testimony in this connection on cross-examination is as follows:

"Q. What was the purpose of furnishing you with a nail puller? A. Why, frequently we would have to remove the lid from a box or a part of the lid, as the case may be. Q. And you frequently had to remove nails from boxes, too, didn't you? 9. No, sir. Q. Never removed any nails from any boxes at all? A. Was never supposed to. Q. Well, did you as a matter of fact? A. No, sir; not unless they were in the lids. Q. You never removed any nail from any box during those 2½ months you worked there? A. Only as I pulled them out of the lid with the puller to get the lid off. Q. Did you handle any boxes during that time in which you saw any nails? A. Protruding, you mean? Q. Any nails anywhere in the box, on the edges or any place else? A. Why, no. Q. Never saw any nails; all nails were always knocked down or removed, so far as you saw? A. Yes, sir; that was the custom. Q. You never saw a box where the lid had been taken off and the board had pulled off through the nail, or pulled up off the nail, leaving the nail sticking up in the edge of the box? A. Not until this particular box."

Plaintiff was injured on Tuesday evening, August 19, 1919. According to his testimony, upon reaching his home that evening he used peroxide and turpentine on his finger, used these that night and all of the next day, and continued to use turpentine the following day. He continued to work for defendant until 5:30 p. m. (the usual quitting time) the following Thursday. His finger, which he had bandaged, was then somewhat swollen and quite painful. He first consulted a physician on the following Sunday morning, August 24, at which time, he says, his finger had become swollen so that it was at least a third larger than its natural size. Plaintiff says that this physician, Dr. Sheets, cut about the wound, put a bandage upon it, and saturated the bandage with some kind of antiseptic. On the following day plaintiff informed defendant's superintendent of his inability to work, who sent him to the office of a physician, and the latter, or his assistant, treated him for a period of about 10 days. Plaintiff says that during this period he suffered excruciating pain, so that he could not sleep day or night, and after 10 days he discontinued the treatment and used poultices upon his hand and arm for the purpose of reducing the swelling; that the pain was intense for at least a month. He did not consult a physician again until about October 1, when he went to Dr. Upshaw, who treated him until the time of the trial below. Plaintiff testified that he had not been able to use the little finger of his right hand since the accident, it being entirely stiff; that he was not able to grasp objects with the other lingers of his hand, and had not been able to do a day's work since his injury.

Dr. Upshaw testified that when he first examined plaintiff's hand there was an infection in the little linger, a necrotic condition of the bone; that the entire hand was badly swollen, and pus was being discharged from a surgical cut that had been made in the little finger. He said that after treating the finger for some time certain pieces of bone, which he exhibited at the trial, came out of the opening or cut mentioned, after which the hand improved; that the hand was swollen for about seven weeks, the inflammation extending up the arm and perhaps to the shoulder; that the hand was in "very bad shape" at the time of the trial; that the litle finger was useless and probably ought to be amputated; that plaintiff had no use of his hand for the reason that he could not close his fingers; and that in his opinion the injuries were permanent.

Dr. Kinder, who examined plaintiff twice shortly before the trial, testified as plaintiff's witness. His testimony as to the condition of plaintiff's hand at the time of the trial is much the same as that of Dr. Upshaw. When asked whether to apply antiseptics, such as peroxide or turpentine, was proper treatment for a punctured finger, he said that the first treatment is usually that kind, a so-called emergency treatment; that there are emergency remedies preferable to turpentine, but that turpentine is "really a good remedy." When asked on cross-examination concerning the use of poultices, he said that in such cases he often discontinues the use of antiseptics and uses poultices when the inflammatory condition has reached the point where suppuration takes place.

The testimony of Dr. Niedringhaus, defendant's only witness, tends to show that when he treated plaintiff the bone of the little finger was not affected. He said that the use of poultices was improper...