Stupp v. Fred J. Swaine Mfg. Co.

• Decision Date: 08 May 1950
• Docket Number: No. 41421,No. 1,41421,1
• Citation: 229 S.W.2d 681
• Parties: STUPP v. FRED J. SWAINE MFG. CO
• Court: Missouri Supreme Court

Page 681

229 S.W.2d 681

STUPP v. FRED J. SWAINE MFG. CO.

No. 41421.

Supreme Court of Missouri, Division No. 1.

May 8, 1950.

Mortimer A. Rosecan, Drew W. Luten, Jr., St. Louis, for appellant.

Jerome A. Gross, Roscoe Anderson, Cullen Coil, St. Louis, for respondent.

CONKLING, Justice.

After having judgment upon the jury's verdict for $20,000 for personal injuries, plaintiff appealed from the circuit court's order granting defendant a new trial. The trial court sustained the defendant's new trial motion upon the sole ground that the court erred in giving plaintiff's instruction 9.

Plaintiff lived in Chicago and was there employed by Universal Metal Products Company as a punch press operator. In April, 1946, plaintiff's employer purchased through a dealer and had received from the manufacturer thereof, the defendant-respondent, whose plant is in St. Louis, a new Swaine No. 39 geared, electric power driven, punch press, of about 65 tons. The press was installed in the Chicago plant of plaintiff's employer. On March 11, 1947, while plaintiff was there operating that punch press for his employer the press 'repeated' when plaintiff's right hand was between the 'dies' of the press, thereby causing the loss of all the fingers of that hand. The press was designed to make but a single downward stroke, move upward and then remain stationary until again started in downward motion by the operator.

The press functioned with two dies, the lower one at rest in the bed of the machine and the upper die, or 'slide', descending and ascending. The metal to be punched out was placed over the lower die. The machine was then started by the operator and the upper die descended pressing out the metal between the dies. When this press was received from defendant it was equipped with and constructed to operate with a foot pedal. Shortly after the press was installed, and in April, 1946 plaintiff's foreman, Elmer Anderson, as a safety measure, disconnected the foot pedal and installed a 'bi-manal' hand-operated control upon it. This was 'a Surty bi-manal safety device.' The press thereafter was not operated by the foot pedal. That 'Surty safety device' was installed 'so a man (the operator) couldn't have his hands in the press (between the dies) when the press was operated (when the upper die descended)'. The new bi-manal control, the operation of which started the descending motion of the upper die, forced the operator to reach out and away to his sides and upward with both hands and to manually press down the hand levers. The hand levers moved down a distance of five inches. That required the operator's two hands to be up and away from the danger zone between the two dies. The operator was required to press down simultaneously with each hand before that part of the machine holding the upper die would start the downward stroke. After the upper die went upward into position and stopped, the operator removed the pressed metal with his hand. After another piece of metal was placed over the lower die, the operator then had to again reach out and away and upward to manually press down simultaneously with each hand to again operate the machine in its single downward stroke of only three inches. In normal operating position the operator's eyes were even with the upper die when that upper die returned to its upper position and came to a standstill.

Plaintiff operated this press for ten months before his accident. He made approximately 4,000 stampings a day. On the occasion of plaintiff's injury on March 11, 1947, he was engaged in stamping out metal covers for Kleenex holders. Each was about 12 inches long. He pressed down simultaneously with each hand to start the machine. The upper die descended and stamped out the metal and then the upper die ascended. Plaintiff reached in with his right hand to remove the pressed out metal when the upper die descended on the 'repeat' stroke without the machine having been again started by plaintiff. Plaintiff did nothing to cause the upper die to 'repeat' or make the second stroke. It had never done that before. His fingers were mashed. Plaintiff testified he 'didn't expect it (the upper die) to stay in motion', and 'did not look to see that it (the upper die) had stopped.' 'Q. But if you had looked you could see it was coming down, couldn't you? A. Yes, sir.' Defendant contends that testimony shows plaintiff was guilty of contributory negligence as a matter of law.

After the accident, Mr. Anderson, the foreman, inspected the press and found that inside the housing the clutch trip and the three clutch tolts were 'chewed up' and badly worn. The worn bolts could not make proper contact with the trip. The bolts 'overrode' the clutch trip, engaged the drive shaft and thus caused the press to 'repeat'. The bolts and trip were replaced with new parts ordered by telephone from defendant in St. Louis. In about three weeks the new bolts and trip became worn and chewed up, and the press again repeated. The press was again taken out of operation. Further examination disclosed that the clutch trip housing had been placed at an improper angle and was out of alignment. That caused improper contact between the bolts and the clutch trip. Too great pressure was exerted on the bolts and trip causing them to become worn, causing the bolts to override the trip, and the punch to repeat. That condition was later fully remedied by foreman Anderson by complete correction of the original misalignment which the machine had when originally received from defendant's factory in St. Louis. William Swaine, Vice-President of defendant company, who examined the punch press in Chicago after plaintiff's accident and had pictures made of it, testified, in part: 'Q. And if your clutch trip is chewed up and your clutch bolts are chewed up, can that cause the machine to repeat? A. It can, definitely. Q. And if the clutch trip is not placed in your machine at the proper angle so that when these bolts engage it there is an undue pressure, can that cause the chewing up? A. Yes, it can.'

The negligence alleged is that the punch press defendant sold and delivered to plaintiff's employer was unsafe and dangerous 'in that its parts were not properly * * * aligned, thus * * * causing said machine * * * to be likely to repeat * * * and to injure anyone who might be using said machine', etc. Upon the oral argument of the case here defendant conceded that plaintiff made a prima facie case for the jury and that under the applicable law a jury case was made if the clutch trip housing was out of alignment. That misalignment was established by plaintiff's evidence. The answer pleaded contributory negligence.

Plaintiff's instruction 1 submitted his theory of his case to the jury, purported to cover the entire case and predicate a verdict for plaintiff. Instruction 1 failed, however, to require a finding that at the time of the injury plaintiff was exercising ordinary care for his own safety. Instruction 3, given for defendant, submitted contributory negligence of plaintiff in general terms only, See Pearrow v. Thompson, 343 Mo. 490, 121 S.W.2d 811 and authorized a verdict for defendant if plaintiff failed to use 'ordinary care for his own safety' and which, 'caused or contributed to cause his injury.' Instruction 8 predicated a verdict for defendant if the jury found that the sole cause of plaintiff's injuries, was that (prior to plaintiff's injury) plaintiff's employer detached from the punch press its original foot operating device, and that in so doing held down the trip of the press from its original position, and that plaintiff's injuries 'were not caused by any negligence on the part of defendant.' The theory of that instruction finds support in defendant's evidence.

The court granted defendant a new trial for the giving of instruction 9, which was in these words: 'Wherever the issue of sole cause is submitted in the instructions and deals with the conduct of Elmer Anderson or the plaintiff's employer, you are instructed therewith that if you find from the credible evidence that the defendant, the Fred J. Swaine Manufacturing Company, was negligent under and within the meaning of Instruction No. 1 and further find from the credible evidence that such negligence of said defendant directly caused the casualty, or so find that such negligence of defendant directly joined and concurred with and (the) conduct of Elmer Anderson or plaintiff's employer, whether negligent or not, in directly causing the casualty, then, under such finding by you, there would be no...