Struckel v. Busch Suizer Bros. Diesel Engine Co., No. 19973.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBennick
Citation300 S.W. 993
PartiesSTRUCKEL v. BUSCH SUIZER BROS. DIESEL ENGINE CO.
Decision Date10 January 1928
Docket NumberNo. 19973.
300 S.W. 993
STRUCKEL
v.
BUSCH SUIZER BROS. DIESEL ENGINE CO.
No. 19973.
St. Louis Court of Appeals. Missouri.
January 10, 1928.

[300 S.W. 994]

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Frank Struckel against the Busch Sulzer Bros. Diesel Engine Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wm. R. Schneider, of St. Louis, for appellant.

John B. Denvir, Jr., of St. Louis, for respondent.

BENNICK, C.


This is an action for damages for personal injuries, alleged to have been sustained by plaintiff on December 15, 1924, while engaged in the operation of an air hammer during the course of the performance of his duties as a servant of defendant. The case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $1,000, from which, its motion for a new trial having been overruled, defendant has duly appealed.

The petition counted upon the negligence of defendant in having failed to furnish plaintiff reasonably safe tools and appliances with which to work, in that the disc of the air hammer was worn, thus permitting pieces of steel to fly out when struck by the hammer.

The amended answer was a general denial, coupled with pleas of contributory negligence and assumption of risk, to which a reply in conventional form was filed.

It appears from the evidence that plaintiff is a blacksmith by trade, and that his principal duty was to make tools for the machinists, in connection with which work he used an air hammer, a mechanical device, consisting of a hammer proper, serving the purpose of a sledge, and a disc, in substitution for the old anvil. Due to the constant application of force upon it, the disc was subject to wear, in consequence of which it was necessary that it be smoothed at regular intervals, so as to prevent the object being forged from flying therefrom when struck by the hammer. While plaintiff understood the process of grinding the disc, the duty of making the necessary repairs belonged peculiarly to the machinists, and such work was done in the machine shop, into which plaintiff was not permitted to go.

A depression of a quarter of an inch had become worn in the disc, of which fact plaintiff had advised his foreman on three or four different occasions. However, so far as obtaining repairs was concerned, he had no success, meeting with the response in each instance that the foreman was too busy to see to the smoothing of the disc, and that meanwhile plaintiff should continue to use it.

At the moment of his injury, plaintiff was holding a small piece of steel, heated to a temperature of 1800 degrees, upon the center of the worn disc, and, at the instant the pressure was applied by the hammer upon the irregular surface, a chip was caused to fly from the steel, striking plaintiff on the chin, inflicting a painful burn, and affecting the nerve so that sensation in the region of the injury was permanently destroyed.

The first assignment of error is directed to the action of the court in refusing to give the peremptory instruction in the nature of a demurrer to the evidence, requested by defendant at the close of the whole case. The point is made, not only that negligence as charged was not proved against defendant, but also that plaintiff should be adjudged guilty of contributory negligence as a matter of law in having continued to work with an air hammer, after he had discovered its defective condition, and had appreciated that it was unsafe and dangerous to use.

The argument advanced upon the first of such propositions is, not that defendant's continuing and nondelegable duty to exercise ordinary care to provide plaintiff with a reasonably safe air hammer was not breached by requiring him to make use of a disc which was worn and defective, nor that the existence of such dangerous condition was not brought to its attention in time for it thereafter, by the exercise of ordinary care, to have smoothed the disc so as to have prevented the steel from flying off of it, but, instead, that there was no evidence that an ordinarily prudent employer, in defendant's position, would or should have appreciated that injury would probably result, if plaintiff continued using the air hammer. This contention is wholly untenable. The fact that defendant recognized the necessity of smoothing the disc at regular intervals, so as to prevent objects thereupon from flying from underneath the hammer, is conclusive that it had reason to believe that mishap of some nature would result, if it should be delinquent in the performance of this duty; and, while it may not have anticipated the particular injury to plaintiff's chin, its liability therefor is, nevertheless, fully established, when it is made to appear, after the injury was inflicted, that such result was a natural and probable consequence of defendant's negligent omission to have made the necessary repairs. Buckner v. Stock Yards Horse & Mule Co., 221 Mo. 700, 120 S. W. 766; Walter v. Missouri Portland Cement Co. (Mo. Sup.) 250 S. W. 567; Kidd v. Chicago, R. I. & P. Ry. Co., 310 Mo. 1, 274 S. W. 1079; Sneed v. Shapleigh Hardware Co. (Mo. App.) 242 S. W. 696; Washburn v. Laclede Gas Light Co.,

300 S.W. 995

202 Mo. App. 102, 214 S. W. 410; Hudson v. Union Electric Light & Power Co. (Mo. App.) 234 S. W. 869.

The contention upon the issue of contributory negligence is based wholly upon plaintiff's affirmative responses to certain questions propounded to him on cross-examination as to whether he knew that it was...

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2 practice notes
  • Mattocks v. Emerson Drug Co., No. 21366.
    • United States
    • Court of Appeal of Missouri (US)
    • December 2, 1930
    ...186 Mo. 269, 85 S. W. 378; Kleinlein v. Foskin (Mo. Sup.) 13 S.W.(2d) 648; Struckel v. Busch Sulzer Bros. Diesel Engine Co. (Mo. App.) 300 S. W. 993; Bishop v. Musick Plating Works, 222 Mo. App. 370, 3 S.W.(2d) It is often said that an appellate court is less disposed to reversed an order g......
  • Johnson v. Boaz-Kiel Const. Co., No. 20688.
    • United States
    • Court of Appeal of Missouri (US)
    • January 7, 1930
    ...to assurance to the employee that such foreman's orders could be observed with reasonable safety. Struckel v. Engine Co. (Mo. App.) 300 S. W. 993. The danger was not so obvious as to convict plaintiff of contributory negligence as a matter of The insistence is further made that the plaintif......
2 cases
  • Mattocks v. Emerson Drug Co., No. 21366.
    • United States
    • Court of Appeal of Missouri (US)
    • December 2, 1930
    ...186 Mo. 269, 85 S. W. 378; Kleinlein v. Foskin (Mo. Sup.) 13 S.W.(2d) 648; Struckel v. Busch Sulzer Bros. Diesel Engine Co. (Mo. App.) 300 S. W. 993; Bishop v. Musick Plating Works, 222 Mo. App. 370, 3 S.W.(2d) It is often said that an appellate court is less disposed to reversed an order g......
  • Johnson v. Boaz-Kiel Const. Co., No. 20688.
    • United States
    • Court of Appeal of Missouri (US)
    • January 7, 1930
    ...to assurance to the employee that such foreman's orders could be observed with reasonable safety. Struckel v. Engine Co. (Mo. App.) 300 S. W. 993. The danger was not so obvious as to convict plaintiff of contributory negligence as a matter of The insistence is further made that the plaintif......

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