Ware v. Northwestern Mach. Co.

• Citation: 273 S.W. 227
• Decision Date: 03 March 1925
• Docket Number: No. 18847.,18847.
• Parties: WARE v. NORTHWESTERN MACH. CO.
• Court: Court of Appeal of Missouri (US)

273 S.W. 227

WARE v. NORTHWESTERN MACH. CO.

No. 18847.

St. Louis Court of Appeals. Missouri.

March 3, 1925.

Rehearing Denied May 12, 1925.

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

"Not to be officially published."

Action by Jewell Ware, a minor, by his next friend, Ethel Ware, against the Northwestern Machine Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A. A. Alexander and Charles E. Morrow, both of St. Louis, for appellant.

Jos. T. Stubinger and T. W. Stubinger, both of St. Louis, for respondent.

DAUES, P. J.

This is an action for damages for personal injuries in which plaintiff recovered a verdict and judgment, and defendant has appealed. The action was brought under the doctrine of res ipsa loquitur. The petition alleges that plaintiff was injured by the unusual operation of a machine in defendant's plant, while plaintiff was working at such machine; that plaintiff's duties did not require him to look after the upkeep of the machine; and that he did not know of the construction and was without means of knowledge of the cause that operated to bring about any extraordinary action or undirected stamping of the die. It is alleged that such information and knowledge, however, was in the possession of the defendant, and that such extraordinary movement of the machine, that is to say, the stamping of the die, without same being operated by a foot pedal, which was the normal leverage of same, was directly due and caused by the defendant's negligence, and that plaintiff was thus injured by the machine unexpectedly and in an extremely unusual manner, and without the foot pedal being operated, coming into action.

The answer is a general denial, and a plea of contributory negligence, and a further plea of assumption of risk. The record discloses that plaintiff, a boy 18 years of age, was injured in defendant's plant in the city of St. Louis on June 8, 1923. He was at the time working at a stationary steel die, his duty being to lay strips of metal on the die for the purpose of shaping same. The upper and lower dies were the same size, the upper die moving up and down as a stamp. The machine was power driven, the shaft being in constant motion. The stamp, or die, however, was so built that same would not move until placed in operation by a foot pedal, and when so started by the foot pedal, the die would move quickly and with force and rebound again by its own power and remain stationary until the foot pedal was used again.

Plaintiff, on this occasion, had inserted the strip into the machine and made the impression by operating the foot pedal, partially completing the work, there remaining one further impression to be made. The metal became lodged in the machine in some way, and plaintiff, with both feet on the floor and in nowise touching the foot pedal, was attempting to disengage the metal from the machine so he could stamp it again. While handling the metal strip, the movable die without any lever or pedal being pressed by plaintiff, struck down, catching plaintiff's index and middle fingers and severely injuring them.

It is in evidence that plaintiff was ignorant of the mechanical construction of the machine, and that he was not required to keep same in repair, or in anywise look after its maintenance. It is also shown that the machine had not been inspected or overhauled for a period of years prior to this occasion, and that the machine was so constructed that same could be taken apart and inspected and adjusted. It is also in evidence that on the day prior to the accident, the machine had similarly fallen without being operated by the foot pedal, another operator being at the machine at the time, who informed defendant's superintendent of the occurrence and told him that he was "scared" of the machine. It is shown that, after plaintiff was injured, the machine had failed to properly function. There is evidence that the die would not descend without the foot pedal being operated, if the machine...