Trent v. Lechtman Printing Company

• Decision Date: 21 February 1910
• Citation: 126 S.W. 238,141 Mo.App. 437
• Parties: CLAY H. TRENT, by next friend, Respondent, v. LECHTMAN PRINTING COMPANY, Appellant
• Court: Kansas Court of Appeals

126 S.W. 238

141 Mo.App. 437

CLAY H. TRENT, by next friend, Respondent, v. LECHTMAN PRINTING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 21, 1910

Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Battle McCardle and Harkless & Histed for appellant.

(1) The demurrer to the plaintiff's evidence should have been sustained because there was no evidence upon which a jury was entitled to pass. Epperson v. Cable Co., 155 Mo 346; Showalter v. Fairbanks, Morse & Co., 88 Wis 376; Whaley v. Coleman, 113 Mo.App. 598; Knorpp v. Wagner, 195 Mo. 637; Myers v. Glass Co., 129 Mo.App. 557; Pulley v. Oil Co., 136 Mo.App. 172, 116 S.W. 430; Goza v. Car and Foundry Co., 142 Mich 340, 105 N.W. 859; Rohrabacher v. Woodward, 124 Mich. 124; Mach. Co. v. Liter (Ky.), 66 S.W. 761; Oil Co. v. Shaw, 27 Tex. Civ. App. 65, 65 S.W. 693; Spencer v. Worthington, 60 N.Y.S. 873, Appel. Div.; Musser-Sauntry Co. v. Brown, 126 F. 141; Smith v. Box Co., 195 Mo. 715; George v. Mfg. Co., 159 Mo. 333; Doerr v. Brewing Assn., 176 Mo. 547; Fugler v. Booth, 117 Mo. 491; Nugent v. Milling Co., 131 Mo. 241; Mfg. Co. v. Wendt, 116 Ill.App. 375; Marcan v. Packing Co., 106 F. 645; Roy v. Hodge, 74 N.H. 190; Cohen v. Hamblin and Russell Co., 186 Mass. 544; Gardiner v. Lumber Co. , 101 N.W. 700, 123 Wis. 338; Stuart v. Railroad, 40 N.E. 180, 163 Mass. 391; Chmiel v. Thorndike Co., 65 N.E. 47, 182 Mass. 112; Manden v. Johnson, 89 Ill.App. 100; Genduhofen v. Ernsting, 23 Ind.App. 188. (2) Instruction No. 1, for plaintiff was bad. Burkhart v. Rope Co., 217 Mo. 466; Knorpp v. Wagner, 195 Mo. 637; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Fugler v. Booth, 117 Mo. 491; Wojtylak v. Coal Co., 188 Mo. 260. (3) Instruction No. 2, for plaintiff was bad. Fugler v. Booth, 117 Mo. 491; Epperson v. Cable Co., 155 Mo. 340. (4) The court erred in refusing to discharge the jury at the request of defendant, because of improper questions asked witness concerning the interest of an insurance company in the case. Gore v. Brockman, 138 Mo.App. 231, 119 S.W. 1082; Volkman v. Brosman, 129 Ill.App. 182; Marigold v. Traction Co., 80 App.Div. (N.Y.) 381; Herrin v. Daly, 80 Miss. 340, 31 So. 790; Iverson v. McDonnell, 36 Wash. 73, 78 P. 202; Mfg. Co. v. Pruett, 110 Ga. 577, 36 S.E. 59; Sawyer v. Shoe Co., 90 Me. 369; Wagon Co. v. Boling (Ky.), 107 S.W. 264; G. A. Fuller Co. v. Darragh, 101 Ill.App. 664; Eckhart v. Schafer, 101 Ill.App. 500; Casselmon v. Dunfee, 172 N.Y. 507; McCarthy v. Coal Co., 83 N.E. 957, 232 Ill. 473; Hollis v. Glass Co., 69 A. 55, 220 Pa. 49; Brewing Co. v. Voeth (Tex. Civ. App.), 84 S.W. 1100.

Reed, Atwood, Yates, Mastin & Harvey and D. E. Bird for respondent.

(1) A servant is not guilty of negligence as a matter of law unless the risk is glaring and obvious. Tsouloufas v. National, etc., Co., 120 S.W. 1188; Burkhead v. Rope Co., 217 Mo. 480; Monahan v. Coal Co., 58 Mo.App. 73; Buckner v. Stock Yards Co., 120 S.W. 769; Conroy v. Iron Works, 62 Mo. 39; Weldon v. Railroad, 93 Mo.App. 674; Campbell v. Railroad, 175 Mo. 175; Butz v. Construction Co., 199 Mo. 287; Huhn v. Railroad, 92 Mo. 440; 1 Labatt, Master and Servant, sec. 395. (2) An inexperienced servant may rely on the assurance of safety given by the master. Rowland v. Railroad Co., 20 Mo.App. 467; McGowan v. Railroad, 61 Mo. 532; Adolff v. Columbia, etc., Co., 100 Mo.App. 208. (3) It is proper to show defendant's liability is covered by insurance. Bard v. Bonsfield, 68 N.W. 45 (Minn.); Day v. Doneho, 41 A. 434 (N.J.) See, also Myer v. Mfg. Co., 67 Mo.App. 391.

OPINION

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, nineteen years and six 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 21x31 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 twenty-four 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 third probably fifteen or twenty 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...