Walk v. St. Louis Can Co.

• Decision Date: 03 June 1930
• Docket Number: No. 20756.,20756.
• Citation: 28 S.W.2d 391
• Parties: WALK v. ST. LOUIS CAN CO.
• Court: Missouri Court of Appeals

28 S.W.2d 391

WALK v. ST. LOUIS CAN CO.

No. 20756.

St. Louis Court of Appeals. Missouri.

June 3, 1930.

Rehearing Denied June 17, 1930.

Appeal from St. Louis Circuit Court; Moses Hartmann, Judge.

"Not to be officially published."

Action by Gladys Walk, an infant, by Jesse Walk, her next friend, against the St. Louis Can Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

T. J. Hoolan, of St. Louis, for appellant.

Mark D. Eagleton, Everett J. Hullverson, and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries received by plaintiff as an employee of defendant while engaged in her duties as such employee at its can manufacturing plant in the City of St. Louis, on February 12, 1926, as the operator of a body-maker machine. Defendant permitted the floor about the machine to become greasy and slippery, and the plaintiff, while engaged in her duties about the machine, slipped on the greasy and slippery floor, and fell. In falling, she threw up her right hand, and it came in contact with the machine, and she thereby received the injuries for which she sues. Plaintiff had been working at this machine about six months before she was injured. The floor where she slipped and fell was usually greasy and slippery. She had slipped on it once before the occasion of her injury. It sometimes had sawdust on it.

By way of specifications of negligence, she alleges in her petition (1) that she was, at the time of her employment and injury, under the age of fourteen years, and required by law to have an employment certificate, but that defendant negligently, and in violation of the law, employed her to work at and about, and to operate, a certain body-maker machine, and negligently, and in violation of the law, retained plaintiff at said work without requiring an employment certificate; (2) that while plaintiff was under the age of sixteen years, defendant negligently, and in violation of the law, put plaintiff to work at said body-maker machine; (3) that defendant negligently failed and omitted to exercise ordinary care to provide plaintiff with a reasonably safe place in which to work, in that the floor there was slippery; (4) that defendant negligently failed to guard said machine and the belts and moving parts connected with it, when same was so placed as to be dangerous to persons working thereabout; (5) that defendant negligently suffered and allowed oil and greasy substances to be on the floor where plaintiff was required to walk and work.

The answer is a general denial coupled with a plea of contributory negligence, wherein it is alleged that the plaintiff negligently put her hand into contact with said machine.

The trial, with a jury, resulted in a verdict in favor of plaintiff for $15,000. This was reduced by remittitur to $7,500, and judgment was given accordingly. Defendant appeals.

The evidence for the plaintiff shows that she was under the age of fourteen years at the time she was injured. This was shown by her own testimony and the testimony of her father, and by a duly certified copy of her birth certificate, filed with the Bureau of Vital Statistics, wherein both the father and the attending physician certified to the date of her birth. She admitted that she represented her age as eighteen years when defendant employed her, but that she did this at the suggestion of defendant's superintendent, who told her that she could not get employment unless she did so misrepresent her age. The evidence with respect to her age stands uncontroverted in the record, nor was there any testimony controverting her testimony as to her reason for misrepresenting her age. The body-maker machine, at which plaintiff was required to work, and at which she was working at the time she was injured, was operated by power. It was made of metal moving parts. It made the body of the can. Plaintiff, in her regular work at the machine, took flat pieces of tin which were piled at her side and inserted them into the machine. The dies of the machine then so operated as to clamp and crimp, and crush, or stamp together the ends of the tin sheets, thus forming the cylindrical body of the can. The body was then taken by a moving belt or conveyor to another machine.

Our child labor statute (sections 1, 2, 5, 6 and 7, p. 185, Session Laws 1921) provides that no child under the age of fourteen years shall be employed or suffered to work at any gainful occupation during the hours when the public school of the district in which the child resides is in session; that no child over the age of fourteen years and under the age of sixteen years shall be employed or suffered to work at any gainful occupation when the public school of the district is in session, unless such child has procured and filed a permit certificate as provided for by the statute; that no child under the age of fourteen years shall be employed in any gainful occupation when the public school of the district is not in session, unless such child shall have a permit certificate; that no child over the age of fourteen years and under the age of sixteen years shall be employed in any gainful occupation while the public school of the district is in session, unless such child shall have a permit certificate; and that permit certificates shall be issued only by the superintendent or principal of the public school of the district, or by some person appointed by an order of the board of directors or board of education. It is conceded that plaintiff never, at any time, had a permit certificate.

The statute (section 6, p. 185, Session Laws 1921) also provides that no child under the age of sixteen years shall be employed, permitted, or suffered to work, at any time, with or without a permit certificate, at any stamping machine used in sheet metal and tinware manufacture. There can hardly be any doubt that the machine at which plaintiff was working at the time she was injured was a stamping machine within the meaning of the statute.

Defendant complains of plaintiff's instruction relating to the measure of damages, on the ground that it is too general in its character. We do not so regard the instruction, but if defendant desired a more definite instruction to be given relative to the measure of damages it should have requested such an instruction, and not having done so, it may not be heard to complain here that the instruction given was too general. Morton v. Lloyd Const. Co., 280 Mo. 360, 217 S. W. 831.

Defendant complains of the refusal of its instruction withdrawing from the consideration of the jury the fourth specification of negligence, relating to the failure of defendant to guard the machine. As to this complaint it suffices to say that this specification of negligence was withdrawn by another instruction given. It is obvious, without discussion, that there is no merit in the suggestion that the court erred in refusing to give defendant's instructions withdrawing the first, second, third, and fifth specifications of negligence. The defendant further complains of the refusal of its instruction directing a verdict for the defendant upon a finding by the...