Czernicke v. Ehrlich

111 S.W. 14, 212 Mo. 386, 1908 Mo. LEXIS 144

Opinion

GANTT, J.

— This is a suit by the plaintiff, an infant, by his next friend, for damages sustained by him by having his hand caught in the sandpaper-smoothing machine owned and operated by the defendants, and about which plaintiff was employed to work when about fifteen years of age without any previous experience.

It is alleged that the said machine was defectively and negligently constructed, maintained and operated, in this, that at the corners of the end of the machine, at which said boards or other material came out from the machine, there were obstructions which impeded, obstructed and prevented said boards or other material from coming out from the machine, and that said machine had no apron or extension table connected with and extending from the end of the machine from which the said boards or other material came out from the machine; and that there were no fenders, railings, barriers or other protection in, over or about said machine to protect the hands of the person so receiving said boards or other materials from the machine, so as to prevent the hands of the person acting as offbearer from becoming caught in and injured by the rollers at or near the end of the machine. It is alleged that on about the 10th of March, 1903, and about a week before the injury complained of, plaintiff was employed by defendants to use and operate- said machine; that at the time he was so employed, he was of tender age, to-wit, fifteen years old, and wholly inexperienced as to the dangers in the use and operation of the machine; that his tender age, inexperience and ignorance were well known to the defendants, and that defendants neither at the time of employing him nor at any other time advised or warned him of the dangers from the use and operation of the said machine, but directed and ordered him to use and operate it; that the defendants instructed plaintiff that whenever a board or other material became obstructed or impeded by the said obstruction at the said corners of the machine, plaintiff should take hold of and seize upon the board so obstructed with his hands and loosen it and extricate it from the machine; that on the 17th of March, 1903, when plaintiff was receiving short boards and materials from said machine, one of said boards became obstructed by the corners of said machine and in obedience to his orders, plaintiff using ordinal care on his part, took hold of said board and attempted to extricate it from said machine and while so doing another board was pushed with great force against the board which he was seeking to loosen and thereby plaintiff’s right hand was caught, and being mashed under the board he was trying to extricate plaintiff with his other hand attempted to release his right hand, and in so doing his left hand fell upon and was thrust in said machine and was caught m the said steel rollers and was lacerated, torn and mashed and permanently disabled from work or use of any kind, for which he prayed judgment in the sum of five thousand dollars.

The defendants in their answer deny, first, each and every allegation in the petition. Second* pleaded that plaintiff’s own contributory negligence caused his injuries, in that while the machine around which he was working was in operation, but at -a time when no lumber or other material was being passed through the machine, and at a time when plaintiff was not .engaged in the performance of any duties around the machine, he carelessly and negligently laid his hand upon the machine in a position where the same was caught under one of the rollers thereof, without any fault or negligence on the part of the defendants. And for a third defense pleaded an assumption of the risk of the said employment.

The reply was a general denial of the new matter set up in the answer.

The evidence tended to show that the machine referred to in the petition was used for the purpose of smoothing lumber by sandpapering, and was of the “Invincible” pattern. It was about four feet high, thirty-six inches in width and constructed on the order of a planing machine; on top were four sets of steel rollers turned in opposite directions and which carried the lumber through the machine. Between the steel rollers were sandpaper rollers which smooth the boards as they pass through. The front rollers and the rear rollers were covered with iron shields so that it was impossible to come in contact with said rollers unless one reached over and behind the shields. The rollers at the rear end of the machine turned out, making it impossible for any object to be caught between them even in the absence of shields, unless such object should come in contact with the front of said rollers. Rods extended1 across the top of the machine in both directions so that lumber could be piled thereon. The machine was fed from the east end by a boy named Charles Rhuby, and the plaintiff was acting as offbearer at the west end. A g’ood-sized boy or man who had been off-bearer left and plaintiff, who was at the time working in the yard handling- lumber, was put to work by the foreman as offbearer. According to the plaintiff’s testimony, the boards when too short to reach from one set of steel rollers to another would sometimes catch against one corner of the mouth of the machine and' would clog. Plaintiff had worked only four or five days on the machine when some short boards caught and clogged, when, following the foreman’s directions as to extricating- the boards, his right hand was caught between the boards and the bottom of the passageway of the boards. In trying to release his right hand he lost his balance and threw his left hand on top of the machine and down between the steel rollers, which drew his fingers and palm in up to the' thumb, scraping and drawing the flesh off the palm. His evidence further tended to show the injury was very painful and permanent.

At the close of plaintiff’s case, the defendants offered a demurrer to the evidence, which the court overruled and defendants then introduced evidence until the adjournment of the court for the day. On the following morning, the court of its own motion stated that on further consideration he would sustain the demurrer, which the defendants again interposed and the court accordingly sustained. Plaintiff thereupon took a non- suit -with leave to set the same aside and thereafter in due time such motion was overruled, and he appealed to this court. A copy of the machine will accompany this opinion.

I. The action of the circuit court in sustaining the demurrer to the evidence presents the only question in this case. That the machine in which plaintiff’s hand was caught and hurt was not such a one as to- bring it within section 6433, Revised Statutes 1899, was ruled in Smith v. Forrester-Nace Box Co., 193 Mo. 715. In that case, the plaintiff was injured while working as an off-bearer from a planing machine and had his hand caught between the rear rollers of the machine, and this court said: “The plaintiff contends that this case falls within the rule prescribed by section 6433, Revised Statutes 1899, .... but the most casual reading of the statute- demonstrates that it has no application whatever to the case at bar. The statute is confined to ‘belting, shafting, gearing and drums in manufacturing establishments.’ Neither the allegations of the petition nor the evidence in this case bxfing this case within the letter or spirit of the statute. The injury complained of was not caused by any belting, shafting-, gearing or drums of the machine.” We can make no distinction between the machine in that case and the one in this case, in the- application of the statute. In Lore v. American Mfg. Co., 160 Mo. 622, it was remarked that in the absence of a statute the master at common law was not bound to fence his dangerous machinery. [Bair v. Heibel, 103 Mo. App. l. c. 632, and cases there cited.] The machine in which the plaintiff’s hand was caught was not in any way a defective machine, at le-ast there is no evidence whatever in the- record which tends to prove that it was a defective machine, either in the- construction or from use. The chief insistence of the plaintiff is that the circuit court erred in not submitting the ease to the jury on the ground that it was the duty of the master to- see that the plaintiff was duly instructed as to the danger of working about said machine. The witness Rhuby testified that plaintiff understood handling the machine. The plaintiff had worked around this machine as offbearer for from five days to a week before he was hurt. While plaintiff alleges he was inexperienced he did not testify that he did not fully understand the working of the machine or that it would he dangerous to let his hand get in the rollers.

Whether this case should have been submitted to the jury under proper instructions is a question not free from difficulty. The general rule is that one who enters the service of another takes upon himself the ordinary risks of the employment. [Smith v. Railroad, 69 Mo. 39; Porter v. Railroad, 71 Mo. 66; Coombs v. New Bedford Cordage Co., 102 Mass. 572; Dowling v. Allen, 74 Mo. 13.] On the other hand, if there are concealed dangers known to the employer and unknown to the employee, it is the duty of the employer to notify the servant of their existence. It is equally well settled that although the machinery or that part of it complained of as especially dangerous is visible, yet, if by reason of the youth and inexperience of the servant he is not aware of the danger to which he is exposed in operating it or approaching near to it, it is the duty of the master to apprise him of the danger if known to him. [Grizzle v. Frost, 3 F. & F. 622; Clarke v. Holmes, 7 H. & N. 937.] In Dowling v. Allen, supra, it was said: “It is not a conclusion of law from the fact that plaintiff was aware of the existence of the set screw and was seventeen years old and sprightly for one of his age, that he was aware of the risk and danger of passing over the shaft while it was in motion.” And so, in Clarke v. Holmes, Byles, J., observed: “A servant knowing the facts may he utterly ignorant of the risks. ’ ’ In Henderson v. Kansas City, 177 Mo. 477, it was said: “The law does not exact the same discretion and judgment from a green, inexperienced hoy, in the handling of complicated machinery, which it would require of an experienced adult and machinist. Each may see the same object before him, but tbe inexperienced boy would be ignorant of the danger, which is apparent to the adult machinist. The court did not err in submitting plaintiff’s age, capacity and experience as elements by which to judge whether he should be barred from recovery, because he could see the engine and the place in which he was required to work.” If plaintiff can recover at all his right to do so must be predicated upon the fact that he was instructed by the superintendent that whenever the boards became obstructed in passing through the machine he should take hold of and remove the same with his hands without warning him as to the danger of doing so while the machine was in motion. We can find no evidence in the record that the machine itself was imminently dangerous unless the operator either carelessly or inadvertently put his hand among or under the rollers SO' that it might be drawn in and crushed. Plaintiff testifies that he was endeavoring to extricate a board that had been caught and impeded in its passage through the machine, and while he was attempting to obey the instructions given him to remove the same with his hand, his right hand was caught, and in endeavoring to release his right hand he lost his balance and in this way his left hand fell over into the rollers. That he might have and probably did know that if his hand was caught in the rollers it would be crushed, may be true, but it does not follow as a matter of law that he knew the danger of attempting to extricate the obstructed piece of plank or board with his hand while the machine was in motion. And considering his youth and short experience in working about the machine and taking out the boards as offbearer, we are inclined to think that it was a question for the jury under all the evidence in the case to say whether the defendants or their superintendent properly and sufficiently warned him of the danger in attempting to remove an obstructed or impeded board while the machine was in motion.

Of course we do not mean by this that the defendants are not entitled to show that he was fully apprised of the workings of the machine and had shown his capacity to handle it properly before the accident and to show, if they can, that he was fully aware of the danger or risk that he ran in attempting to extricate the boards that were or might be obstructed or impeded in their passage through the machine and that such risk was open and obvious to him, and was in no sense a hidden or latent hazard or danger incident to his occupation. "What we hold is that it can not be said as a matter of law that a boy of the age and of the short experience which plaintiff had in working about this machine and in attempting to extricate a board that had become obstructed or impeded in its passage through the machine in obedience to the directions given him by the foreman to remove said board with his hands while the machine was in motion, is guilty of such- contributory negligence as to bar a recovery on the ground that he had not been properly instructed as to the danger attendant upon such action on his part, or that he should be held to have assumed the risk of so doing as a matter of law. The case was not fully developed on the trial and we forbear from expressing any opinion as to its merits. All that we hold is that in our opinion the plaintiff was entitled to go to the jury under the evidence introduced by him under proper instructions from the court as to the measuré of the liability of the master and the plaintiff respectively. And in this view of the case, we think the court erroneously sustained the demurrer to the evidence and the judgment must be reversed and the cause remanded for a new trial in accordance with .the views herein expressed.

Fox, P. J., and Burgess, J., concur.