State ex rel. Fulton Iron Works v. Allen

• Decision Date: 30 December 1926
• Docket Number: 25614
• Citation: 289 S.W. 583
• Parties: STATE ex rel. FULTON IRON WORKS v. ALLEN et al., Judges
• Court: Missouri Supreme Court

289 S.W. 583

STATE ex rel. FULTON IRON WORKS v. ALLEN et al., Judges

No. 25614

Supreme Court of Missouri

December 30, 1926

Holland Rutledge & Lashly and R. L. Ailworth, all of St. Louis for relator.

Claude M. Crooks and Charles E. Morrow, both of St. Louis, for respondents.

In Banc.

OTTO ATWOOD, and WALKER, JJ., concur.BLAIR, J., dissents.RAGLAND & GRAVES, JJ., absent.

OPINION

WHITE J.

The case comes to me on a reassignment.

One James E. Ferguson sustained injuries May 23, 1921, while in the employ of relator at its foundry in the city of St. Louis. He recovered judgment against the relator for such injuries. Relator appealed, and the judgment was affirmed by the St. Louis Court of Appeals January 8, 1924. The opinion of the Court of Appeals thus describes the employment of plaintiff, the work in which he was engaged, and the machinery which he operated:

'* * * Plaintiff, who was about 34 years of age, was in the employ of defendant at its foundry, engaged in chipping rough projections from certain castings by means of an automatic air hammer and a chisel operated by compressed air communicated to the hammer by means of a hose attached to pipes leading from tanks of compressed air, which air was compressed by means of an engine. The hammer was 12 to 14 inches in length, and there was a piston or plunger which worked back and forth in the cylinder or barrel and against the chisel placed in the end of the barrel. When in operation, plaintiff would hold his right hand on the handle, and his left hand around the chisel. There was a trigger which was pulled with the finger to operate and control the air. The chisel was then held against rough projections on metal castings, and, when struck by the plunger, would break off the castings and make the metal smooth. When the hammer was in order and pressure was placed upon the trigger, the valve opened, and air was forced into the hammer, and caused the piston to operate, and, when the pressure was taken off the trigger, it would shut off the power. Plaintiff was operating this hammer, but was not particularly familiar with its mechanism. Plaintiff had nothing to do with the inspection or repair of the hammer, nor had he any control over the source of power which operated the same. In the ordinary and usual operation of the hammer, it did not jump or vibrate, but, when it was placed against the projections, the force of the stroke would be from the operator, and would cause the particles of metal broken and chipped off to fly away from him. This was plaintiff's evidence in respect to this matter. Although he stated that occasionally a few pieces might fly toward him, yet nearly all these small particles of metal casting which were removed by means of the hammer when in proper operation would fly away from him. The evidence of a number of witnesses for the defendant was to the effect that such particles would fly in all directions. From plaintiff's evidence it further appears that, while he had operated these hammers for quite a period before his injury, he had never before been struck by particles of metal chipped off by such hammer, although they might fly toward him. On this occasion he wore goggles, although they were not properly arranged so as to protect his eyes. At the time plaintiff went to work on the night of his injury, a hammer was furnished and provided him by defendant's foreman, Schroeder, and he was directed by said foreman to use this particular hammer, and he started chipping from a steel valve chest.'

The evidence of the plaintiff set out in the opinion explaining how the injury occurred is as follows:

'I was chipping forward until I had reached almost the top or peak of this cut I was taking off; this cut ran a length of about, something like six or eight inches, and I judge about an inch or three-quarters, something like that, thick; the cut was crosswise, broad, and the thickness was something like an inch; maybe a little better than an inch.

'In chipping this, when I reached this highest peak, all at once this machine gets to bucking, jumping, and vibrating; it threw the slack of this casting, and one piece hit the lens, a pretty good chunk, and three pieces entered into this left eye. A piece hit my cheek, and one small piece hit the right eye. That blinded me, and the machine began to buck and vibrate so that I could not hold it.

'Eventually it kicked the chisel from my hand, down about the side of the casting I was chipping.'

Further facts are stated in the opinion to the effect that the plaintiff did nothing to cause the hammer to jump and vibrate as it did, nor did he see any one else do anything to bring about that result.

A few minutes after plaintiff was hurt he was told by his foreman to throw the hammer on his bench and let the repair man fix it. The plaintiff further testified that he was using the hammer in the usual and customary way, as he had always used it; had never known it to act in such an unusual manner before. The particular hammer had been in use in the defendant's factory for about five years.

The opinion further recites facts, thus:

'Defendant's evidence tended to show that if dirt or dust would get in the hammer, or a rock, as sometimes happens, the trigger would close, and would not work, but the plunger would continue its strokes. When the hammer is going at full speed, or the valve wide open, the plunger hits about six hundred times a minute. This speed can be controlled down to eighty or one hundred strokes a minute when the trigger and valves are in proper working order.'

I. It is first claimed that the Court of Appeals erred in holding that the trial court correctly overruled a demurrer to the evidence, offered at the close of the plaintiff's evidence, and a demurrer to the evidence offered at the close of the case.

The petition pleaded general negligence, and relied upon the ipsa loquitur rule. While the plaintiff made out a case by showing the unusual action of the hammer and the ensuing injury of defendant, relator introduced evidence to show that the particles, chipped off the metal, would fly in all directions when the hammer was in proper order. That being proved, it is argued, the fact that the chips flew in the direction of the plaintiff, and put out his eye when...