Mertz v. A. Leschen & Sons Rope Co.

156 S.W. 807, 174 Mo. App. 94, 1913 Mo. App. LEXIS 93
CourtMissouri Court of Appeals
DecidedMay 6, 1913
StatusPublished
Cited by5 cases

This text of 156 S.W. 807 (Mertz v. A. Leschen & Sons Rope Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mertz v. A. Leschen & Sons Rope Co., 156 S.W. 807, 174 Mo. App. 94, 1913 Mo. App. LEXIS 93 (Mo. Ct. App. 1913).

Opinion

ALLEN, J.

This is an action for personal injuries consisting of the loss of an eye, suffered by plaintiff while in the employ of defendant as its servant. Plaintiff recovered and defendant prosecutes the appeal.

Defendant is a manufacturer of wire rope, and at the time that plaintiff received his injuries, his duties' ordinarily consisted in operating a machine designed for making such rope. The machine in question is a very complicated one, and nothing like a complete description of it need be attempted. It had a number of bobbins which carried the separate strands of wire and from which these separate wires were unwound, later to be wound into a rope or cable. There were three of these machines, of practically the same kind, placed in a row. One of them was ordinarily operated by plaintiff, another by one Baer and the third by one Yarwig. These three machines could be operated separately, as they ordinarily were, or they could- be coupled up and operated together, as was done when [98]*98it was desired to make a large wire rope or cable. When the machines were run separately each operator attended to his own machine; when they were coupled however and running together Varwig had charge of the three machines. One Berding was the foreman over this department, having charge of the entire floor upon which these machines were situated. It was he who instructed plaintiff how to operate his machine when plaintiff was first put to work at it. Plaintiff had been working at this machine about a month prior to the accident.

All three of these operators were subject to the-general orders and directions of the foreman, Berding. However, when the three machines were coupled up as described above, it appears that under the master’s orders Varwig was to have charge of and supervision-over all three of the machines, with authority to give directions to the other two men. With respect to his own duties and authority, when the three machines were running together, a portion of Varwig’s testimony, as it appears in the record, is as follows: “I had to give directions to two men. . . . Mr. Mertz was working under me and he received orders from me. He had been working in that department about a month and he received his directions from me, that is provided we were coupled up. We had three machines coupled together when he was working under me; otherwise I didn’t have anything to do with him. When the three machines were working together, I had charge of them. ... At all times, except when the three were coupled, I had no authority whatever over Mertz and gave him no orders of any kind. . . . Whenever we coupled up, I was supposed to instruct them. ’ ’

In regard to this same question, a portion of plaintiff’s testimony appears as follows: “When the three machines were coupled together it took three of us to run them. Mr. Varwig had charge of the crew [99]*99of three and gave instructions to me and to Mr. Baer. When they were coupled together no one but Yarwig gave the instructions as to how the machines were to be run. . . . Whenever we ran together he had charge of them. Mr. Berding told us to go to Var-wig for instructions when we were coupled up together. That was when I first went on. ’ ’

At the time plaintiff received his injury, the three machines were coupled and running together, for the purpose of making a larger cable out of the wires that came from the three machines. When so running the finished cable came out from Yarwig’s machine. It started at plaintiff’s machine with twelve wires, continuing through Baer’s machine, where it received twelve more wires, on through Yarwig’s machine, which carried eighteen wires. In addition to these smaller wires, there was a big wire in the center of the cable that began with plaintiff’s.machine, and about which the smaller wires were wound. Each small wire was unwound from a separate bobbin, and, by complicated movements of the machines, the wires were ultimately wound into a large strand of wire rope.

When these machines were thus being operated in conjunction with each other, any one of the operators could stop all three machines. This was done in case a wire broke, or a bobbin ran out of wire, etc. On the day in question these three machines were being so operated, when a bobbin on plaintiff’s machine became empty and the machines were stopped to fill this bobbin. In doing this it was necessary to put the wire through a small hole in what is called the journal of the flier. It appears that plaintiff had put wires on larger bobbins, but that he had never done so with a small bobbin, such as had become empty, and Yarwig testified that it had to be done in a way different from that which was employed in the case of larger bobbins such as plaintiff had been using. It appears in fact that plaintiff had never put a wire through one of these [100]*100journals when the machines were coupled up. In order to do this Varwig took hold of the end of the wire, telling plaintiff to hold the bobbin, to tighten the tension, and directing plaintiff to watch how he did it, saying: “Watch me while I put this through the flier so that you can do the same thing the next time yourself.” Varwig testified that he took hold of the wire with his right hand about four inches from the end of the wire, with- this hand under the wire, holding the latter between his thumb and his fingers; that with his left hand he grasped the wire probably about two and one-half or three feet from his right hand. Pie was using his right hand to put the wire into the hole in the journal of the flier, keeping all the time his left hand about two and one-half or three feet further down on the wire, and was starting to put the wire into this hole. While he was so doing he called to plaintiff, telling him to watch how it was done so that plaintiff could do the same thing thereafter. Thereupon plaintiff, who was nearsighted, and which Varwig knew, placed his face within about two feet of the end of the wire to watch Varwig thread it into the hole in question. Varwig did not get the wire into the flier, but it slipped or flew out of his right hand, the end of the wire flying upward and springing backward, striking plaintiff in the eye, and putting his eye out. It appears that the wire did not move at all from Varwig’s left hand. He did not let go of the wire with this hand at all. In other words it does not appear that the wire was jerked or pulled from Varwig’s hands or that it slipped longitudinally out .of his right-hand; on the contrary it appears that when he had hold of it from beneath, with the thumb and fingers of his right hand, about four inches from the end, this portion of the wire slipped upward out of his grasp, and that- the spring in it caused it to fly back far enough to strike plaintiff in the eye. The wire was oily and slippery, and Varwig’s hands were covered with oil. [101]*101The latter testified that he was threading the wire into the hole in question in the same way that he had always done heretofore, but nevertheless the wire slipped from his fingers.

At the close of plaintiff’s case defendant offered an instruction in the nature of a demurrer to the evidence, which was refused by the court. Thereupon defendant offered no evidence, except three photographs, two being of the machine upon which plaintiff was working, and one showing the three machines as they were being operated at the time of plaintiff’s injury.

Appellant’s only assignment of error pertains to the overruling of its demurrer to the evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
156 S.W. 807, 174 Mo. App. 94, 1913 Mo. App. LEXIS 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mertz-v-a-leschen-sons-rope-co-moctapp-1913.