Zasemowich v. American Mfg. Co.

Decision Date03 June 1919
Docket NumberNo. 20178.,20178.
Citation213 S.W. 799
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by Kalenik Zasernowich against the American Manufacturing Company. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. Reversed.

This is an action for damages, brought by plaintiff in the circuit court of St. Louis, Mo., on account of an injury sustained while in the employ of defendant, on March 4, 1910. Plaintiff is a Russian by birth, was 22 years of age at date of trial, had been in St. Louis about 4 years, could not speak the English language, and his testimony was given through an interpreter. The defendant is a Missouri corporation, engaged in manufacturing and marketing bagging and like products. In the conduct of its business, on Ninth and Barry streets, in St. Louis, it operates a large factory known as "Southern Mills." In said factory, defendant operated a certain large machine known as a "Wool Washer." It was about 20 feet long, 7 feet wide, and attached to the "discharge" end of said machine there are two horizontal iron or steel rollers, about 4 feet long, each about 14 inches in diameter or 42 inches in circumference, which are caused to revolve toward each other, the function of which is to extract the water from the fiber that is passed through it after the same has been washed in said machine. The upper of said rollers, in order to better perform its function, is covered with burlap. In the use of said machine, it became necessary to change the"top covering of burlap six or seven times a day.

On March 4, 1916, Tony Calahan was foreman, and it was his duty to see that the work went on properly. It was a part of his work to assist in putting in new burlap over the rollers on above machine, and plaintiff was under him. Plaintiff had been doing this same work, six or seven times each working day, for four or five months. Calahan taught plaintiff how to do the work properly, and watched him do it. The pieces of burlap used for covering the top roller came from the cutting department up stairs. The pieces used for this purpose were sorted by Joe Christ. Sometimes the plaintiff would go up and get the burlap and sometimes Calahan would get it. Plaintiff testified that Calahan brought it down that morning and put it by the machine.

Calahan testified that when the pieces of burlap were taken down to the machine the man who was to put them on picked out the pieces to be used. "He sees how many pieces he needs for the roller, then picks them out; if he needs six or seven or eight. I gave them instructions to examine the pieces, and what was no good to send upstairs again. That was the regular way of doing that. In doing this work the plaintiff would be on the inside, where the roller turns in. He would receive the burlap on the top. That was the position he would always occupy. I saw him doing so day after day, and he did it all right."

Plaintiff testified that on the morning of the accident, Calahan told him to go and put burlap on the rollers. This was the same kind of work he had been doing for four or five months, and six or seven times a day. After receiving this order, plaintiff took his usual position on top of the machine, in front of the rollers, while Mike Stocki was in the rear, and another employé, named Paul Agnes, stood at the lever by which the belt which controlled the rollers was thrown. The rollers were operated by electric power by means of a belt. The latter was by the side of the machine on a wheel. Plaintiff described the operation of this belt as follows:

"There were two wheels on the end; one was loose, another one was fast to the roller, and when the rollers were standing still the belt was running over the loose wheel, and then they would push this belt on the other wheel, which would turn and make the rollers revolve."

This belt was about four or five inches wide. Plaintiff says the rollers were about 3 feet above the man's head at the lever; that it always took three men to cover the rollers; two on top, and one on the floor. The rollers were the only things in motion while they were being covered with burlap.

Plaintiff testified as follows:

"Q. And that roller was started and stopped by the man at the lever just as often as was necessary while you were covering the roller? A. Yes, sir. "

"Q. And who gave the man at the lever, who was standing there on the floor, the signal when to stop and when to start? A. I did; because when it was necessary to start the rollers I told him to start, and when to stop I told him to stop."

There was a bar across the machine, right over the roller, and Mike Stocki fed the burlap over the top of the roller and under this bar. Stocki would get out, pick up some burlap, hand it to plaintiff, go back to his place, and then push the burlap under the bar, and plaintiff would receive it.

Plaintiff further testified:

"The Court: How soon after the belt reached the loose pulley would the roller stop rolling? A. The roller would turn about halfway, half a revolution, because the belt was wide, and by the time they would throw it from one wheel to the loose wheel it would make about a half revolution."

Plaintiff testified that while straightening and smoothing the burlap the thumb of his left hand caught in a hole of the burlap, and his fingers were pulled between the rollers; that he noticed his thumb was being pulled down, shouted, but the belt was so wide that by the time the man at the lever threw off the belt his hand was caught in the roller. It tore off the fingers of his left hand.

The evidence is undisputed that the material used in covering the rollers was secondhand burlap, or, that which had been used before. There is nothing in the record tending to show that any different burlap was used on day of accident from that which plaintiff had been daily using during the four or five months previous. Plaintiff's evidence tends to show that practically all the burlap used by defendant in covering the rollers had holes in it.

Stocki testified that he saw the holes in the burlap that caught plaintiff's hand before he was hurt; that plaintiff could have seen the holes, but he had to look where he was working.

There is nothing in the record to indicate that plaintiff, or any other employé, ever made any complaint about the burlap used, nor that the work which was being done was dangerous or unsafe. The record is barren of any evidence tending to show that any other person was ever hurt while doing the work as plaintiff had been doing it. No evidence was introduced tending to show that it was negligence upon the part of defendant to use the burlap which it was using at time of accident or prior thereto.

At the conclusion of plaintiff's evidence, and at the conclusion of all the evidence, appellant requested the court to direct a verdict for defendant, which requests were overruled.

The instructions asked, given, and refused, as far as necessary, will be considered, in connection with other matters, in the opinion.

The jury returned a verdict for plaintiff in the sum of $10,000, and judgment was entered thereon accordingly. Defendant, in due time, filed its motion for a new trial, which was overruled, and the cause duly appealed by it to this court.

Werner & Penney, of St. Louis, for appellant.

John C. Robertson, of St. Louis, for respondent.

RAILEY, C. (after stating the facts as above).

I. Appellant contends that under the allegations of amended petition and on the facts presented in the record plaintiff failed to make out his case. In considering this question, the trial court eliminated from the cause by an instruction certain charges of negligence, as follows:

"The court instructs the jury that, in arriving at their verdict, they will not consider any of the testimony relating to the absence of guards or of posted notices as to danger."

The remaining portion of amended petition, in respect to defendant's alleged negligence, reads as follows:

"Plaintiff further states that it was the duty of the defendant to furnish him with a reasonably safe place to work and reasonably safe appliances, tools, and material with which to work; but plaintiff says that defendant, through its foreman, negligently and carelessly furnished and provided him with material to place upon said `roller' that was not reasonably safe, in this, that defendant's foreman furnished sheets of bagging or burlap that was old, rotten, and worn; that in the placing of said covering upon said roller it became necessary for plaintiff to hold with his hands the edges of the sheet being placed upon the roller, in order to place it thereon straight and smooth; that upon the day aforesaid, while he was thus engaged in placing the covering upon said roller, and while he was holding said sheet between his hands, as aforesaid, and whilst said rollers were being moved for the purpose of having the covering placed thereon, the thumb on one of plaintiff's hands was caught in a hole in the rotten and worn sheet of bagging; and while said roller was moving four fingers of said hand were pulled into and between the horizontal rollers, as heretofore described, and crushed and broken to such an extent that they were all amputated.

"Plaintiff further states that the `Wool Washer' heretofore described is machinery, and a part of it consists of gearings and drums; that said horizontal iron rollers were so placed as were dangerous to persons employed in said manufacturing and mechanical establishment of the defendant working about the same, while engaged in their ordinary duties as such employé of the defendant, * * * and plaintiff states that each and every one of said duties incumbent upon the defendant, * * * to provide reasonably safe material with which plaintiff was required to work, was wholly neglected and omitted by...

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