Trent v. Lechtman Printing Co.

• Decision Date: 21 February 1910
• Citation: 141 Mo. App. 437,126 S.W. 238
• Parties: TRENT v. LECHTMAN PRINTING CO.
• Court: Missouri Court of Appeals

126 S.W. 238

141 Mo. App. 437

TRENT v. LECHTMAN PRINTING CO.

Kansas City Court of Appeals. Missouri.

February 21, 1910.

1. APPEAL AND ERROR (§ 995) — REVIEW — FINDINGS — WEIGHING EVIDENCE.

The Court of Appeals cannot weigh the evidence to determine on which side it preponderates.

2. APPEAL AND ERROR (§ 927) — REVIEW — ON DEMURRER TO EVIDENCE.

In determining the propriety of overruling a demurrer to plaintiff's evidence, the Court of Appeals must give the evidence full credence.

3. MASTER AND SERVANT (§ 278) — INJURIES TO SERVANT — SUFFICIENCY OF EVIDENCE — DEFECTS.

A printing press at which plaintiff was employed, containing a moving jaw, which received the cardboard and carried it against a stationary die having knives on its face, held, on the evidence, to be defective in that the cork cushions on the die were so badly worn that they permitted the cardboard to stick to the die, causing plaintiff to reach his hand further into the machine than was ordinarily necessary.

4. MASTER AND SERVANT (§ 276) — INJURIES TO SERVANT — PROXIMATE CAUSE — EVIDENCE.

Evidence held to sustain a finding that defective cushion on a printing press proximately caused plaintiff's injuries.

5. MASTER AND SERVANT (§ 226) — ASSUMPTION OF RISK — MASTER'S NEGLIGENCE — UNSAFE APPLIANCE.

A servant does not assume the risk of injury caused by the master's negligence in failing to maintain appliances in a safe condition, but only assumes risks which are natural and incident to the employment.

6. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — JURY QUESTION — CONTRIBUTORY NEGLIGENCE.

In an action for injuries to a printing press employé by a moving jaw on the press, which received the cardboard and carried it against a stationary die having knives on its face, by having his hand crushed between the jaw and die, resulting, as plaintiff claimed, from the worn condition of cork cushions on the die, which condition permitted the cardboard to stick to the die, causing plaintiff to reach his hand further into the machine than was ordinarily necessary, whether plaintiff was guilty of contributory negligence held for the jury.

7. EVIDENCE (§ 5) — JUDICIAL NOTICE.

The Court of Appeals will take cognizance of the universal belief among lawyers of the highly prejudicial effect on defendant in a personal injury action of an intimation that defendant is protected by employer's liability insurance.

8. TRIAL (§ 133)—CONDUCT OF COUNSEL— PREJUDICIAL REMARKS.

In a servant's action for personal injury, the conduct of plaintiff's counsel in asking questions on cross-examination tending to show that defendant carried employé's accident insurance, and in continuing to intimate by remarks in the jury's presence, after the court had directed them not to consider such testimony, that defendant carried such insurance, was prejudicial error, notwithstanding the court's action in withdrawing such remarks from the jury after permitting them to be made.

9. MASTER AND SERVANT (§ 267)—INJURIES TO SERVANT—EVIDENCE.

In a servant's personal injury action, evidence that defendant carried employés accident insurance is wholly irrelevant.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Clay H. Trent, a minor, by George Hineman, his next friend, against the Lechtman Printing Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Battle McCardle and Harkless & Histed, for appellant. D. E. Bird and Reed, Atwood, Yates, Mastin & Harvey, for respondent.

JOHNSON, J.

Action by a servant against his master to recover damages for personal injuries alleged to have been caused by the negligence of the master. Verdict and judgment were for plaintiff in the sum of $7,000, and the cause is here on the appeal of defendant.

The injury occurred in Kansas City, May 4, 1906, and resulted in the loss to plaintiff of his left hand, which was so badly mashed in a press operated in defendant's printing establishment that amputation at the wrist became necessary. Plaintiff at the time was a minor 19 years and 6 months old. He was reared on a farm, had come to the city September, 1904, to seek his fortune, had been employed in various capacities, and about three weeks before his injury had obtained employment from defendant. He was inexperienced in the printing business, and did roustabout work for awhile, but the day before he was hurt defendant set him to feeding a press employed in cutting and creasing sheets of cardboard for use in making paper boxes. The foreman of the room explained the work to plaintiff, and instructed him in the use of the machine, which was of the following description: The back of the press was upright, immovable, and made to receive and keep in place a die which was 21×31 inches in superficial dimensions, and made to hold thin metal strips set edgewise. Some of these strips, called knives, had sharp edges to cut through the cardboard, others had dull edges to crease it. A movable platen or jaw received the cardboard on its inner surface and closed it on the die, where it received the necessary cuts and creases. The press was run by electric power, and in operation the jaw made 24 movements per minute. As the jaw brought back a treated sheet, it was the duty of the operator to remove that sheet with his left hand, and to put in a fresh one with his right hand. Necessarily the hand had to be inserted a few inches below the outer edge of the jaw, and, if not withdrawn in time, would be caught by the jaw, which was heavy and powerful, and crushed against the stationary die. When in good order, the movement of the jaw allowed sufficient time for the hands of the operator to perform their functions in safety. Devices called blocks or guides held the cardboard on the face of the platen, so that it would not move in being carried to and from the die. To prevent the cardboard from sticking, it was necessary to oil the face of the platen occasionally. This was done by the operator, who rubbed the surface with an oiled rag, and it was an imperative rule of the office that the oiling should not be done while the press was in motion. Another device called an "impression" fixed the place at which the jaw would stop in its forward movement. When the impression was "on," the jaw brought the cardboard against the die with enough pressure to cause it to be cut and creased, but when the impression was "off," the jaw stopped when its face was a fraction of an inch from the face of the die. Another rule of the office required the impression to be thrown "off" by the operator before he undertook to oil the face of the platen. Projecting forward two inches or so from the face of the die were four small coiled springs, and between the knives and creases were inserted a large number of small squares of cork. The surface of these squares was slightly raised above the edges of the knives, and it appears that the springs and corks acted as a cushion to protect the knives from receiving the pressure from the face of the platen, and also served to push the cardboard back, and thereby to prevent it sticking to the die. The evidence of plaintiff tends to show that the springs and corks had been used so much they were weakened and so deficient in resiliency that they allowed the cardboard, in many instances, to become displaced and spoiled, and that in removing the spoiled ones, plaintiff was compelled to insert his left hand deeper into the machine than was necessary when it was in proper order. On one such occasion he failed to withdraw his hand in time, and it was caught by the jaw and mashed against the die.

The petition alleges "that by reason of the failure of the said cork and springs around said knives of said wall or back and by reason of the failure of the pins or guides on said lid or jaw to hold the paper in the usual and ordinary way, this plaintiff was compelled to reach farther into said machine, and to expose his hands to being caught and injured by the action of the knives in the operation of this machine, and that by reason of the defective condition as aforesaid, and while attempting to perform his duties in the usual and ordinary way, and without any fault or negligence on his part, this plaintiff was injured; * * * that when said machine failed to perform its duties in the usual and ordinary way, he made complaint to defendant's superintendent in charge, E. W. Fehrenkamp, and that said superintendent, E. W. Fehrenkamp, assured this plaintiff that said machine was in proper condition, and that no danger would befall this plaintiff in performance of his duties as aforesaid; * * * that defendant negligently and carelessly allowed said machine to become and remain out of repair; that defendant negligently and carelessly failed and refused and neglected to warn this plaintiff of any danger; that defendant, by their superintendent, E. W. Fehrenkamp, instructed and compelled this plaintiff, over his said objections and protests, to work at and with said machine, thereby causing the injuries complained of in this petition; * * * that the defendant knew of the defects in said machinery, or by the exercise of care and caution could have known of said defects in time to have prevented the accident to this plaintiff."

The account of the injury given by plaintiff in his testimony is as follows: "Well, it was the evening of the 3d, probably 15 or 20 minutes before quitting time, at 5:30, as I remember, that I was put on this job of cutting these pepper and spice boxes, and I noticed the machine was not working just right then, but I had no opportunity to speak to Mr. Fehrenkamp because he was busy, and it was so near morning when I began work at 8 o'clock I fed a few cards to see if it was still working that way, and it was, and it seemed to me it was out of order, and I went to Mr. Fehrenkamp and spoke to him, and he says: `I am busy, I will be back'—and I went along again. He came over and said, `Put two...