Stoll v. Frank Adam Electric Co.

• Decision Date: 04 April 1922
• Docket Number: No. 17026.,17026.
• Citation: 240 S.W. 245
• Parties: STOLL v. FRANK ADAM ELECTRIC CO.
• Court: Missouri Court of Appeals

240 S.W. 245

STOLL v. FRANK ADAM ELECTRIC CO.

No. 17026.

St. Louis Court of Appeals. Missouri.

April 4, 1922.

Rehearing Denied April 28, 1922.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

Action by Meta Stoll against the Frank Adam Electric Company for personal injuries. Peremptory instruction for the defendant, and plaintiff took an involuntary nonsuit with leave to move to set the same aside. Upon the overruling of said motion, plaintiff appeals. Reversed and remanded, and motion for rehearing overruled.

Conrad Paeben, of St. Louis (James T. Roberts, of St. Louis, of counsel), for appellant.

Jones, Rocker, Sullivan & Angert, of St. Louis, for respondent.

NIPPER, C.

This is an action to recover for personal injuries alleged to have been sustained by plaintiff while working as a clerk or demonstrator in defendant's place of business, by having her hand caught between the rubber rollers of an electrically operated "wringer" attached to a washing machine.

The court gave a peremptory instruction for defendant at the close of plaintiff's case, and plaintiff took an involuntary nonsuit with leave to move to set the same aside. Upon the overruling of said motion plaintiff perfected her appeal to this court.

The accident occurred on the 12th of December, 1918, and this action is based upon section 7828, R. S. 1909, now section 6786, It. S. 1919.

The defendant conducted a store on Pine street, in the city of St. Louis. In this store were the usual fixtures to be found in one of this kind. Arranged on the floor were rows of electric stoves and electric washing machines. These machines were so arranged as to create a narrow aisle wide enough for a person to walk through. Plaintiff was employed as a saleswoman, and worked for defendant in this store, which was designated as an electric shop. It was plaintiff's duty to sell anything in the store that customers wanted. She had worked for defendant about three months prior to the accident. When a customer would come in, it was plaintiff's duty to demonstrate these washing machines with their various attachments. The machine which caused plaintiff's injury is known as a Thor washing machine. There is a button attached to the machine which turns on the electric power. This power is conveyed to the machine by means of an electric cord which is plugged in at a socket located near the desk. There is a lever which is used to start and stop the rollers of the wringer attached to the machine. She plugged in the socket located on the floor, and as she rose some one was trying to pass her in the narrow aisle as she stood close to this washing machine. The rollers which caught her hand were not guarded. In answer to the question as to how it happened, she stated:

"As I got up to a standing position, some one was going past me, and turning my body I was standing at this machine, this Thor machine, and my hand was drawn in between the rollers of this machine, which were running, just to take my hand through."

It appears that she did not start the machine after plugging in the cord, but it had been left apparently in a position to start as soon as the cord was attached. The rollers in this wringer were located at a height slightly above the waist line of plaintiff. The machines were not manufactured in this establishment, but were merely sold there as a retail store. The evidence also discloses that it was possible to guard the rollers of this machine, and that similar machines were guarded in laundries.

Aside from the doctor who testified as to plaintiff's injuries, only three witnesses testified in this case.

I. The facts are plain and undisputed. The questions of law presented by this appeal are: Whether or not defendant was engaged in such business as comes within the

provisions of the section of our statute above referred to; and whether or not plaintiff was guilty of contributory negligence as a matter of law.

II. The statute upon which this action is based, as it existed at the time of the accident, reads as follows:

"The belting, shafting, machines, machinery, gearing and drums in all manufacturing, mechanical and other establishments in this state, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible," etc.

This statute has been construed by our appellate courts a number of times, although the exact questions presented here have not been heretofore directly passed upon by any of the courts of this state, so far as we have been able to ascertain.

Our Supreme Court, in Cole v. North American Lead Co., 240 Mo. 397, 144 S. W. 855, stated that—

This section of our statute was "one of the wisest and most humane statutes to be found upon our statute books, and should be given a broad and liberal interpretation, because it is remedial and highly salutary. * * * The Legislature knew that the human mind and conduct was such that a servant when in the performance of his duties to his master, surrounded by dangerous machinery, in motion, with his mind concentrated upon his work, oblivious to his surroundings, is liable to slip or take a misstep and fall into the revolving machinery, or thoughtlessly thrust his hand or other portion of his body in the gearing or other portion of the machinery. * * * It was the intention of the Legislature and the object and purpose of the statute to put a stop to all such injuries which grow out of such inattention, inadvertence, mishaps or accidents, that is, such acts of omission."

In Yates v. House Wrecking Co. (Mo. App.) 195 S. W. 549, loc. cit. 551, it is said:

"The question, primarily, is not at what particular place is the machinery located but rather is, where is it located with reference to the servant's ordinary duties. If, in the performance of such duties, he must go or reach in dangerous proximity to the machinery, it should be `securely guarded when possible.'"

In Austin v. Shoe Co., 176 Mo. App. 546, 158 S. W. 709, it was held by this court that this statute is highly remedial, and, although it changes the common law, it is to be liberally construed in favor of the safety of the lives and limbs of employees who may be employed about dangerous machinery, and that the very language of the statute affords unmistakable evidence of the broad purposes held in view by our legislators in providing for the safety of employees engaged in and about the factories and workshops in this state. In this connection, see, also, Heman Construction Co. v. Henderson, 198 Mo. App. 423, 199 S. W. 1045; Willadsen v. Blue Valley Creamery Co., 201 Mo. App. 527, 214 S. W. 258; 18 R. C. L. 591.

Defendant contends that the phrase, "and other establishments," in the connection it is used, was intended to embrace places of the same general character as those...