Uhl v. Century Electric Co.

• Decision Date: 03 May 1927
• Docket Number: No. 19146.,19146.
• Citation: 295 S.W. 127
• Parties: UHL v. CENTURY ELECTRIC CO.
• Court: Missouri Court of Appeals

295 S.W. 127

UHL v. CENTURY ELECTRIC CO.

No. 19146.

St. Louis Court of Appeals. Missouri.

May 3, 1927.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Fred Uhl against the Century Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Holland, Rutledge & Lashly, of St Louis, for appellant.

Mark D. Eagleton, John F. Clancy, E. J. FluRyerson, and Harry S. Rooks, all of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while operating a punch press belonging to defendant, used for stamping and punching metal. The petition relied upon general negligence so as to bring the case within the rule res ipsa loquitur. The answer contained a general denial and also a plea of contributory negligence on the part of the plaintiff, to the effect that, whatever injuries were sustained by plaintiff, were due to his own negligence in operating the press. The answer alleged that plaintiff violated the rule of defendant.

Plaintiff's evidence showed that he was injured by the sudden starting in motion of the punch press without the control pedal being pressed. He had operated the press for several months prior to the injury, and it had repeated on previous occasions and was repaired. The metal on which he was working at the time he was injured was a round metal disc about 14 or 16 inches in diameter, in which the press punched five separate holes near the center of the disc. The disc was inserted and slipped over the die. When he pulled it back, the machine suddenly started in motion without the pedal being pressed. This caused the tip of plaintiff's third finger on his left hand to be mashed.

The only duties plaintiff had to perform in connection with the machine was to operate the same. While the machine was in good order, it would not start a punching operation without the foot pedal being pressed. Plaintiff testified that the defendant had a sign posted saying: "Keep your hands from underneath the machines when they repeat." He also stated that the signs informed persons working there that any one who kept putting his hands under the operating part of the machine would be discharged.

There is no question raised here as to the extent of plaintiff's injuries, or the amount of damages awarded; therefore it is unnecessary to refer to that portion of the evidence in this opinion.

It is difficult to ascertain from this record the precise manner in which plaintiff sustained this injury, and whether or not at the time he did so he was violating a known rule of his employer.

We copy the following from plaintiff's testimony on cross-examination:

"Q. The punch press comes down and punches this metal, does it? A. Yes, sir; supposed to.

"Q. Then how do you take it out? (Witness illustrates.)

"Q. Take it out and throw it away? A. Yes. "Q. This gap lets your hand in the front, does it? A. Yes, sir.

"Q. You say on the occasion you got hurt— how did you do it; what was it that happened to you? A. Well, it slipped over.

"Q. Did it stay there? A. It came back; the machine repeated.

"Q. You are supposed to throw this in and let it loose? A. No, sir; because they don't fit that way.

"Q. You think, then, you are supposed to take your fingers and push down on it, do you? A. Yes, sir; in order to tighten it.

"Q. But this one, you say you had let it loose and it went over? A. I didn't leave loose.

"Q. Just show me exactly where it went. (Witness illustrates.)

"Q. It went over there, did it? A. Yes. "Q. You still held to it? A. Yes.

"Q. Show me where it went over. (Witness illustrates.)

"Q. You still held to it, did you? A. Yes, sir.

"Q. And then you went to pull it back? A. Yes.

"Q. And while it was still over there the punch came down? A. Yes, sir.

"Q. Unexpectedly? A. Yes, sir.

"Q. And punched the material and mashed your finger? A. Yes, sir.

"Q. You did not have your finger under one of these punches that went through the holes? A. No.

"Q. It was merely this stripper that touched your finger, wasn't it, the outside edge of this stripper? A. I don't know what it was.

"Q. But none of these punches touched it? A. No, sir; I don't think so.

"Q. At any rate, the material was lying over like that, was it, when the punch came downy A. Yes, sir.

"Q. The way you have it there? A. Yes, sir.

"Q. And your hand was on it? A. Yes.

"Q. If that is the right mark, your hand was there, was it? A. Yes, sir.

"Q. While it was lying in that position is when the machine descended without your pushing the treadle—it was over here? (Witness illustrates.)

"Q. That is the best of your memory, the way it is now. A. Yes.

"Q. And then the press descended? A. Yes, sir.

"Q. And without your having pressed the treadle? A. Yes, sir.

"Q. And caught your finger there and also punched the material? A. Yes."

The plaintiff recovered judgment in the court below, and defendant brings the case here by appeal. The principal point made by defendant on appeal is that the court erred in refusing to give its peremptory instruction in the nature of a demurrer to the evidence, on the theory that the plaintiff received his injury while violating a known rule promulgated by the defendant, and that he is not entitled to recover under those circumstances.

We are aware of the rule of law that, where the master adopts and promulgates rules which, if observed by the servants, will protect them from injury, he has performed his duty. However, the master cannot adopt an unreasonable rule or one which goes to the extent of amounting to a contract against negligence, and avoid liability.

In the instant case, according to the plaintiff's testimony, the rule required all employees to keep their hands from underneath the machines when they repeat. Of course, no employee, while exercising any care for his own safety, would put his hands beneath the press when it was repeating, but the nature and character of the work which plaintiff was performing was such that he would be likely to place his hands under some part of this press while in the performance of his duties, while the same was not in motion. When the press was not in motion there was no danger, and if in good working order it would not repeat. The action of the punch press in repeating without any fault on the part of the plaintiff was such as to raise the presumption of negligence, and the defendant could not be permitted to...