Vanesler v. Moser Cigar & Paper Box Co.

• Decision Date: 13 December 1904
• Citation: 84 S.W. 201,108 Mo. App. 621
• Court: Missouri Court of Appeals
• Parties: VANESLER v. MOSER CIGAR & PAPER BOX CO.<SMALL><SUP>*</SUP></SMALL>

84 S.W. 201

108 Mo. App. 621

VANESLER v. MOSER CIGAR & PAPER BOX CO.^*

St. Louis Court of Appeals. Missouri.

December 13, 1904.

MASTER — INJURY TO SERVANT — NEGLIGENCE — JURY QUESTION — INFANTS — DUTY OF EMPLOYER — VERDICT — EXCESSIVENESS.

1. In an action by an infant employé against his employer for injuries occasioned by attempting to clean a machine while in motion, evidence examined, and whether defendant was guilty of negligence in permitting the plaintiff to clean the machine held a question for the jury.

2. Where defendant's foreman saw plaintiff, a boy of 10 years of age, cleaning a machine while it was in motion, and, knowing it was dangerous work, and that plaintiff was young and inexperienced, permitted him to go on with the work without warning or advice, such conduct on the part of the foreman rendered the defendant liable for injuries to plaintiff resulting from his attempt to clean the machine.

3. A verdict for $2,000 in a personal injury action is not excessive where the plaintiff, a boy 10 years of age, was shown to have lost a thumb and suffered other injuries to his hand and arm, which were extremely severe, and caused great pain for a long time.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by William Vanesler, by his next friend, John W. Vanesler, against the Moser Cigar & Paper Box Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Kortjohn & Kortjohn, for appellant. Stephen G. Rogers, for respondent.

GOODE, J.

Plaintiff, William Vanesler, had his right hand and arm mangled in a paper-cutting machine in defendant's factory. He was at that time a lad ten years of age, and had been working in the factory about two weeks. The duty to which he was assigned when first employed in the factory was running errands and cleaning up boxes and scraps of paper under and about the machine. At the time he was hurt the boy was cleaning the machine, he says, by the direction of the man who operated it, William Grummel. The boy testified that the foreman of the establishment, Emil Wetzel, came along while he (plaintiff) was cleaning the machine, saw him doing that work, and said nothing by way of remonstrance, but told him to clear some papers off the top of it and put them in a box, or take them downstairs. The testimony goes to show that the boy had never before been ordered to clear the top of the machine of papers, but it had been his task to take them off the floor under it. After he had performed the chore the foreman ordered him to do, he renewed the work of cleaning the machine, in the course of which his hand was caught in some manner, and greatly injured. The establishment was in a building of three stories, and there were many machines on all the floors. The ground of recovery charged in the petition is that the plaintiff was ordered and permitted by the defendant, by and through its agents and servants in charge, to clean the paper off the top of the cutting machine, and that while he was engaged in cleaning it his hand was caught in a cavity around the wheels and between the stationary and revolving wheels, and injured; that in thus ordering and permitting plaintiff, whom the defendant knew, or could have known, was under the age of 14 years, and unaccustomed to working around and about such machinery, the defendant was negligent; that, in ordering and permitting plaintiff to work about said machinery without cautioning and instructing him how to clean and work about it while it was in motion, the defendant was negligent. The petition describes the particular machine which inflicted the injuries, saying it was constructed of various and divers pulleys, belts, wheels, cogwheels, knives, bars, levers, and other mechanism, and among the mechanism constituting it were two certain round pieces of metal or wheels on an axle or pulleys, so arranged that one was stationary and the other revolved with great rapidity very close to the stationary one, and that through both these pieces of metal or wheels there was a hole or cavity; that said machine was so constructed that the knife could be started or stopped without stopping or starting the other machinery of said machine. The machine was operated by mechanical power, and was in motion when plaintiff was set to clean it and while he was engaged in that work.

It is agreed by counsel that the statute of the state prohibiting the employment of children under 14 years of age in manufacturing establishments is not involved in the case. Rev. St. 1899, §§ 2189, 2190. At the trial the judge instructed that there was no evidence to show the defendant, or any person authorized by it, directed or requested plaintiff to clean the machine by which he was injured. This instruction eliminated from the case a recovery on the statute providing that minors and women shall not be required to clean machinery or work between the fixed and traversing parts of a machine while it is in motion. Rev. St. 1899, § 6434. The instructions permitted a recovery on the finding of these facts only: that the plaintiff was directed by the operator of the machine to clean it, and that Emil Wetzel, the foreman, saw him at the work, and negligently permitted him to continue without cautioning him or warning him of his danger. The main instruction is as follows: "The court instructs the jury that if they find and believe from the evidence that in June, 1903, plaintiff, William Vanesler, was a boy between 10 and 11 years of age, and was employed by defendant as an errand boy at its box factory; and that he was there so working for about two weeks; and that on or about June 13, 1903, he was requested by the operator of a paper-cutting machine operated by steam, and in use in said factory, to clean the machine, which was in motion, but not in use; that the said plaintiff proceeded to clean said machine; that it was dangerous for him to do so; that he was at the time inexperienced and unaccustomed to said machine, or the cleaning thereof, and because of his age and inexperience, if you find same, was not aware of the danger (if you find there was such)...