Webster v. International Shoe Co.
| Citation | 18 S.W.2d 131 |
| Decision Date | 21 June 1929 |
| Docket Number | No. 20659.,20659. |
| Parties | WEBSTER v. INTERNATIONAL SHOE CO. |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.
"Not to be officially published."
Action by Erma Webster, an infant, by Clara Webster, her next friend, against the International Shoe Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Mark D. Eagleton and Hensley, Allen & Marsalek, all of St. Louis, for respondent.
Plaintiff, in her action for damages for personal injuries alleged to have been sustained by her while in the employ of defendant, recovered judgment for $3,000, and defendant in due course appeals.
Plaintiff's petition alleges, in effect, that she was a minor, 17 years of age; that she was in the employ of defendant in its shoe factory at St. Clair, Mo.; that she was injured when one of the needles of a machine she was operating broke, and a part of the needle flew into her eye. The petition sets up four acts of negligence on defendant's part, two of which were submitted to the jury, to wit, that the defendant negligently furnished and provided plaintiff with a machine in which the needles were not properly fitted, and that the needles were not properly tempered, by reason of which they were likely to break and fly and injure the plaintiff. The defendant's answer was a general denial.
The record discloses testimony tending to show that plaintiff was working for defendant on a vamping machine, driven by electric power. The machine had two needles. In the operation of this machine occasionally a needle would be broken. On February 16, 1924, the day on which plaintiff was hurt, this condition became pronounced. Plaintiff stated positively that the machine was out of order, and that she reported this condition to Ray Chism, a machinist in defendant's employ, who admittedly was the proper person to take care of such matters. Chism, in response to plaintiff's request, adjusted some part of the machine, and plaintiff operated it 30 or 45 minutes. It then began to work improperly again. It would break the needles. Plaintiff again called Chism, and, according to plaintiff's testimony, "he sat down and took the machine — to fix it — I don't know what he did to it — something to make it sew better, I suppose, and he said it was all right now, I should sit down and sew, and he didn't think the needles would break any more." At Chism's direction, and while Chism was still standing behind her, plaintiff attempted to operate the machine, and as soon as the machine started one of the needles broke and a part of it struck her eye.
Plaintiff testified that * * *"
For a week or ten days plaintiff's eye was red and swollen; she was unable to stand daylight and had to remain in a dark room. During this period she suffered severe headaches. She then returned to work, but, as the injured eye kept paining her, the defendant gave her work other than that of running a machine. In September, 1924, plaintiff's eye again became inflamed, and defendant sent her to Dr. Woodruff, an eye specialist in St. Louis, who treated her for several weeks and then sent her to Dr. Bryan, a nose and throat specialist, who also treated her for several weeks, after which, in the month of October, 1924, plaintiff was under treatment by Dr. Steiner.
Dr. Steiner testified that he found an inflammation of the optic nerve of plaintiff's left eye, a condition which he described as retinal choroiditis, and that the vision of this eye was zero. In his opinion the condition of the eye could have been caused by an accident. He further expressed the view that there would not be any improvement in the condition of the eye.
On cross-examination, Dr. Steiner testified that in light of the history given him by the plaintiff at the time she consulted him he "would have to say the condition was due to the injury."
May Fulton, a witness for defendant, testified that she was the forelady in the fitting department of the shoe factory where plaintiff was working at the time she met with her injury, and that plaintiff came to her on that day and "complained of her injury."
Louise Kramme, another witness for defendant, testified that she was the forelady under whom plaintiff was working the 16th day of February, 1924, and that plaintiff reported to her that "she had broken a needle and it hit her in the eye." On cross-examination, she stated: "I went back to the machine because she told me she had broken the needle, and I found that it was broken."
Defendant did not call Chism, its machinist, nor account for his absence.
Edgar L. Sexauer, defendant's foreman, testified that the accident was reported to him by the forelady, who told him that a needle broke and hit the plaintiff in the eye. He gave a number of causes for breaking needles — defective thread, the manner in which the operator handled the machine, and the machine being out of adjustment, also heavy leather or a wrinkle in the material. He could not tell whether any repairs had been made to the machine on the day plaintiff was hurt.
On cross-examination, he testified that, assuming the operator handled the thread and material properly, and operated the machine at proper speed, and used a proper sized needle, then the only thing that would cause the needle to break would be either an imperfection in the temper of the needle or the fact that the needle was not properly adjusted.
A number of other witnesses testified, some of whom knew of the injury to plaintiff's eye when it happened, but did not know the details of the occurrence.
The plaintiff testified, on rebuttal, that she did not pull the thread or move the vamp or operate the machine in such a way as to cause the needle to break; that the leather was not doubled up nor was it of unusual thickness; that she did not run the needle into a seam of any kind, and that the needle was of the same size as was ordinarily used for that class of work; that she did nothing on the occasion of the accident except to put her foot on the pedal, whereupon the machine started up and the needle broke.
It is here urged that defendant's demurrer to the evidence should have been sustained on the theory that plaintiff failed to prove any, of the allegations of negligence set out in her petition.
On demurrer, plaintiff's evidence, whether contradicted or not, must be regarded as...
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