Walling v. Missouri Stair Co.

• Decision Date: 07 December 1920
• Docket Number: No. 16219.,16219.
• Citation: 227 S.W. 879
• Parties: WALLING v. MISSOURI STAIR CO.
• Court: Missouri Court of Appeals

227 S.W. 879

WALLING v. MISSOURI STAIR CO.

No. 16219.

St. Louis Court of Appeals. Missouri.

December 7, 1920.

Rehearing Denied February 24, 1921.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

"Not to be officially published."

Action by Harry F. Walling against the Missouri Stair Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Jones, Rocker, Sullivan & Angert, of St. Louis, for appellant.

Wm. R. Schneider and Thos. S. Meng, both of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while in the employ of the defendant corporation as its servant. Plaintiff was injured while engaged in operating a woodworking machine in defendant's factory in the city of St. Louis; plaintiff's thumb upon his right hand being caught and mutilated by revolving knives upon the machine, so that it became necessary to amputate the thumb.

The petition charges that plaintiff's injury resulted directly from defendant's negligence in failing to provide plaintiff with a safe place to work, while requiring him to work about and with a dangerous machine, in that the floor upon which the machine was placed was "rickety" and not level and was "constantly and violently shaking"; that the machine was not fastened to the floor, "did not set level on the floor, and was constantly being pulled out of place by its power belt," by reason whereof the machine was "constantly making erratic and unusual movements, which caused the piece of wood, upon which plaintiff was working at the time he received the said injury, to slip and be thrown out of its proper place, and caused the plaintiff's thumb to come in contact with the unguarded revolving knives on said machine," causing plaintiff's injury.

The petition further charges negligence on the part of defendant, In that defendant, through its foreman, "required plaintiff, for the sake of speed, to operate said machine in an improper and unsafe way, without the use of the customary safety slide or guard." Other specifications of negligence are found in the petition, but as they were abandoned at the trial they need not be noticed.

The answer is a general denial, coupled with a plea of contributory negligence. The trial, before the court and a jury, resulted in a verdict and judgment in favor of plaintiff for the sum of $4,000, and the case is here on defendant's appeal.

Evidence was adduced by plaintiff, though contradicted, tending to show that the floor of the factory was uneven and the machine unsteady and erratic in its movements, and tending to show that such unevenness of the floor, and the unsteadiness and erratic movements of the machine, caused a board upon which plaintiff was attempting to make a groove to "kick back," by reason whereof plaintiff's thumb was caught by the knives. And plaintiff's evidence, which was likewise contradicted, tended to show that defendant's foreman had ordered plaintiff to dispense with the use of a certain slide in operating the machine, the purpose of which was to prevent a casualty of this character.

It is not disputed that the case made by plaintiff's evidence was one for the jury, and that the court committed no error in overruling defendant's demurrer to the evidence. The assignments of error pertain to the giving and refusing of instructions. Instructions Nos. 2 and 3, given for plaintiff, are assailed. These instructions are as follows:

(2) "If you find and believe from the evidence that the block machine on which plaintiff was working at the time he was injured was not fastened to the floor, and did not set level to the floor, and that by reason thereof said machine was shaky and unsteady in the ordinary operation thereof, and if you further find that the operation of said block machine in an ordinarily careful and prudent manner required that it be steadied by being fastened to the floor, then defendant was guilty of negligence in allowing said machine to be operated without being so fastened and steadied."

(3) "If you find and believe from the evidence that defendant was guilty of negligence, and that in direct consequence thereof plaintiff received the injuries complained of, then your verdict must be for the plaintiff."

The attack upon instruction No. 2 is that the jury were thereby told, if they found the facts therein hypothesized, namely, that the machine was not fastened to the floor, and did not "set level to the floor," and for that reason was shaky and unsteady, and that the operation thereof in an ordinary and prudent manner required that it be "steadied .by being fastened to the floor, then defendant was guilty of negligence," without requiring the jury to find that defendant either knew of the shaky and unsteady, and hence dangerous, condition of the...