Huss v. Heydt Bakery Co.

IN BANC.

Phn Curiam:: —

The following-opinion by Craves, J., in Division No. One, is adopted as the opinion of this court. In this Gantt, C. J., Burgess, Valliant and Lamm, JJ., concur; Fox, J., concurs in the result; Woodson, J., dissents in separate opinion.

*48 IN DIVISION ONE'.

GRAVES, J. — Action in the circuit court of the city of St. Louis for personal injuries. Defendant is a domestic corporation engaged in the bakery business wherein it has a certain machine called a dough-mixer. Plaintiff was the person who operated said machine. The pertinent portions of the petition are:

“Plaintiff further states that it was the duty of said defendant,company to safely and securely guard the belting, shafting, gearing and drums of the establishment, when possible, and when so placed as to be dangerous to persons employed therein or thereabout, while engaged in their ordinary duties. And that said defendant company failed to safely and securely guard the belting, shafting, gearing and di*ums of its establishment, and that the said failure was in this, to-wit: That the said gearing and cog-wheels of the said dough-mixing machine was at and prior to said 9th day of November, 1903, left wholly unguarded, and that said gearing, belting, shafting and drums were dangerous to plaintiff and persons employed therein or thereabout, while engaged in their ordinary duties. And that said gearing, belting, shafting and drums could easily have been guarded so as to- prevent injury to-plaintiff and persons while in the exercise of their ordinary duties.

“Plaintiff further states that defendant negligently permitted the floor of said establishment, particularly in the neighborhood of said dough-mixing machine, to become dangerous and unsafe for any person to walk over, and that defendant allowed a barrel or barrels of baking-oil to stand within a few feet from said machine, from which quantities of baking-oil did escape and make the floor in the neighborhood of plaintiff’s said machine, on said 9th day of November, 1903, *49 greasy and slippery so that the said floor could not be walked over without danger of falling.

“Plaintiff further states that on or about the said 9th day of November, 1903, while plaintiff was in the active discharge of the ordinary duties of his employment and while plaintiff was in the exercise of ordinary care and prudence on his part, plaintiff slipped and fell by reason of the slippery and greasy condition of said floor, whereby plaintiff’s left hand was thrown into the said cog-wheels and gearing of said dough-mixing machine, whereby he lost his first three fingers and part of the palm of his said hand and his little finger was permanently stiffened and crippled — and his thumb was broken and bent and permanently stiffened and crippled and his entire hand thus rendered forever useless.

“That the said injuries received by plaintiff were caused solely by the failure of the defendant to guard the said gearing and cog-wheels of said dough-mixing machine, as it was the defendant’s duty to do, and by reason of the defendant failing to keep the floor on its establishment in the neighborhood of said dough-mixing machine in a reasonably safe condition, as it was defendant’s duty to do.”

Damages in the sum of $20,000 were claimed. Defendant’s answer consisted of a general denial, a plea of assumption of risk, and a plea of contributory negligence.

To this answer plaintiff moved to require defendant to make its plea of contributory negligence moré definite, and demurred to the defense of assumption of risk. Both motion and demurrer were overruled, plaintiff saving his execeptions and preserving them in a term bill of exceptions.

Later a reply in the nature of a general denial was filed. Such are the issues.

*50 Upon trial a verdict, signed by eleven of the twelve jurors, was returned in favor of defendant, and a judgment entered in accordance therewith. After the adverse ruling of the trial court upon a timely motion for new trial, the plaintiff duly perfected his appeal to this court. The alleged errors charged against the trial court consist of the giving of certain instructions in behalf of defendant, as well as the admission of certain evidence in its behalf, all of which will be noticed in the course of the opinion.

I. The first complaint lodged in the brief filed by plaintiff is the giving of instruction numbered 1 for defendant. This instruction reads: ‘ ‘ The court instructs the jury that if you believe from the evidence that the gearing upon the machine in question could not be safely and securely guarded without materially interfering with the efficient working of the machine in question, then and in that case the failure to so guard said gearing constituted no negligence on the part of defendant.”

The objection urged to this instruction is two-fold: First, that there is no evidence upon which to base it, and, secondly, plaintiff says: “The said instruction number 1 for defendant is further objeetional in that it does not state the law, for if the machine could not be guarded, it was the duty of defendant to post a no>tice to that effect. Of this duty no mention is made in the instruction.”

There is evidence in the record to the effect that a similar machine when guarded had occasioned an accident to an employee working thereat. The machine and its surroundings were described to the jury and a' photograph of the machine and its surroundings was in evidence. With this in the record, it cannot be said that there was no evidence upon which to predicate the instruction.

But going a step further, the plaintiff in his in *51 struction numbered 1 required tbe jury to find that said machinery could be protected or covered. The language used by him in this instruction is: “And if you further believe that such dough-mixing machine and the belting, gearing, drums and cog-wheels thereof were at the time so situated as to admit of guards being placed upon such belting, drums, gearing and cogwheels, without interfering with their free operation or with necessary access to them or with necessary passageway by or around them, ’ ’ etc.

Now, the instruction numbered 1 for defendant simply placed before the jury the converse of the proposition presented by plaintiff’s instruction. Under such circumstances there was no error in giving the instruction for the defendant.

Nor is the instruction subject to the second criticism made by plaintiff. Plaintiff’s cause-of action is not based upon the ground that this machinery could not be protected, and therefore defendant was negligent in not posting a notice as- required by Revised Statutes 1899, section 6433, but is based upon the negligent act of the defendant in failing to guard a machine which the plaintiff alleged could be guarded. A failure to post a statutory notice is not the negligence relied upon by the plaintiff. A party cannot plead one act of negligence as the basis of his action, and have a recovery upon another and different act of negligence. The section of statute above mentioned, is as follows:

“The belting, shafting, gearing and drums, in all manufacturing, mechanical and other establishments in this State, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments.”

Under this statute and the two separate clauses *52 thereof,two acts of negligence are covered: First,where there is machinery that can he guarded, then a failure to guard it is negligence. Second, where the machinery is dangerous and cannot he guarded, then a notice of its dangerous character must he posted and a failure to perform this duty is negligence. In this case the plaintiff did not see fit to say that the machinery was dangerous and could not he guarded, and therefore a notice was required, hut grounded his action upon a failure to properly guard machinery which was dangerous, hut which could be guarded. On this theory the case proceeded below, and upon this theory it must proceed here. A case cannot be tried upon one theory below, and tried upon another and different theory here. The instruction was proper upon the theory of the case adopted by the plaintiff.

II. The next contention is that there was error in giving instruction numbered 3 for defendant, which instruction reads: “The court instructs the jury that it was the duty of the plaintiff while working in the vicinity of the machine in question to exercise ordinary care for his own safety, that is, such care as a person of ordinary prudence would exercise, under the same or similar circumstances. And the court instructs the jury that if you believe from the evidence that one of the' duties of the plaintiff as an employee of defendant was to keep clean the floor in the vicinity of the machine in question, and had the plaintiff fulfilled the said duty on the occasion in question he would not have slipped and would not have caught his hand in the gearing in question, then and in that case your verdict must be for the defendant. ’ ’

This instruction properly declares the law. To understand its application a further statement of the facts would not be inapropos. Between this dough-mixing machine and the wall of the building or room was a space of six to eight feet. A part of this space was *53 used as a pass-way, and the part next to the wall was occupied by barrels in which were contained oils and other materials to be used in the process of mixing bread. These oils and other materials, including the flour, would escape and accumulate on the floor of the passage-way, thus rendering it slippery and dangerous. The evidence fairly shows, by a preponderance thereof, that one of the duties of the plaintiff was to keep this passage-way clean, and that he had failed so to do. With these facts in the record, it cannot be said that there was error in this instruction. It covered, and to our mind properly covered, a very vital question in the ease. Here we have a record full of evidence that the plaintiff had neglected one of his duties in permitting the passage-way to become slippery. The slippery condition occasioned his fall, and as a result of the fall, his injury. The case is not on all-fours with Musick v. Dold Packing Company, 58 Mo. App. 322, relied upon by the plaintiff. In the Musick case the fall of plaintiff was occasioned by a slippery floor, and by the fall the plaintiff was thrown into an uncovered vat of hot water and burned. There was no evidence in that record to the effect that the slippery condition was the result of a neglect or failure upon the part of Musick, and therein lies the distinction between that case and the case at bar. In other words, Musick had been guilty of no negligence which contributed to his own injury, as a proximate cause thereof, or as one of the proximate causes thereof. Here the jury could readily find that the fall upon the slippery floor, at least one of the proximate causes of the injury, was occasioned by the neglect of the plaintiff, and in that way his own neglect contributed to the injury received and was one of the producing causes thereof. There may be a cpmbination of causes producing an injury. In this case, but for the slippery floor (a condition superinduced by the negligence of *54 the plaintiff) there would have been no fall and consequently no injury. On the other hand, there might have been the fall and no consequent injury had the machinery been guarded. The injury was not therefore entirely dependent upon one cause, but upon a result of the two combined, one of which was the product of plaintiff’s néglect of duty and want of due care for his own safety. The instruction goes only to the contributory negligence 'of the plaintiff, and in actions of this character, contributory negligence is held to be a defense. [Spiva v. Osage Coal & Mining Co., 88 Mo. 68; Wendler v. People’s House Furnishing Co., 165 Mo. 527.]

In the first-named case, at page 74, we said: ‘ ‘ The duties imposed by the statute were for the health and safety of those engaged in mining labor and occupation, and entitled to its benefits, but it is not the intention of the act, or policy of the law, to exempt any from the direct and immediate consequence of his own carelessness. [Reynolds v. Hindman, 32 Ia. 146; Railroad v. Ward, 61 Ill. 130; Beaucoup Coal Co. v. Cooper, 12 Brad. (Ill. App.) 373.] The right of action accruing to the widow under the statute is such as would have existed in the husband’s favor if death had not ensued, and none other, and as we hold that the husband could not, under the evidence, have maintained the action, if he had survived the accident, a recovery must be denied plaintiff upon the same ground.”

In discussing the-same statute, in Durant v. Lexington Coal Mining Co., 97 Mo. l. c. 66, Black, J., said: “But we do not say in this case that plaintiff could recover if guilty of negligence himself.”

It would, therefore, appear that, notwithstanding a statutory duty has been imposed, and there has been a failure to perform that duty, yet the defendant, so failing in the performance of the statutory- duty, can avail himself of the plea of contributory negligence.

*55 The plea of assumption of risk may rest upon a different basis, and we do not discuss it, for the reason that while the court refused to strike out such plea in” the answer, yet, when the case was submitted to the jury, the instructions submitted no such issue. What we do say is that the contributory negligence of the plaintiff in such cases is held to be a proper defense, and this instruction properly covers that phase of the case.

What we have said of instruction numbered 3 applies with equal force to instruction numbered 4. This instruction covers the same ground as instruction numbered 3, except that it is a little more specific in language. Both cover the same proposition and were proper. Either could have been omitted, and the law of -the case would have been properly declared upon this point. The trial court simply gave two' instructions, worded somewhat differently, covering the same question. This is not reversible error.

III. Instruction numbered 6 given for the defendant is criticised. This instruction reads: “The court instructs the jury that even though you believe from the evidence that the gearing on the machine in question was entirely unguarded, yet if you further believe and find from the evidence that the presence of said gear wheels and the fact that said gear wheels- were uncovered was known to the plaintiff and if you further believe from the evidence that the danger of working near the same was open and obvious and was known to plaintiff, and was SO' obvious and imminent that a person of ordinary prudence would not have continued to work near said gear or cog-wheels, then and in that case your verdict must be for the defendant.”

This instruction does not so much state the assumption of risk, as it does the negligence of plaintiff in remaining in a place of obvious and known danger. The instruction says, “and was so obvious and immi *56 nent that a person of ordinary prudence would not have continued to work near said gear or cog-wheels, then and in that case your verdict must he for the defendant.” This instruction is really based upon the idea that if an employee knows that a place furnished by the master is so obviously and imminently dangerous that an ordinarily prudent person would not remain at work thereat, then it is contributory negligence upon his part to remain there and for that reason there can be no recovery. In the case at’ bar a photograph of the situation together with oral testimony as to surrounding conditions was before the jury, and we think the instruction proper.

IV. Plaintiff assails the action of the court in giving this instruction: “The court instructs the jury that in a suit of this kind it is the duty of the jury to base their verdict solely upon the evidence in the case and the instructions given by the court.”

There is at least no reversible error in this instruction. Plaintiff was an individual and defendant a corporation, as shown by the record. The court no doubt had this fact in view and in the use of the words “of this Idnd ’ ’ evidently meant cases wherein an individual was on one side and a corporation on the other. Instructions', differently worded, but conveying the same idea, have often been given and never especially condemned by this court. Many times have the courts instracted juries to the effect that the fact that the plaintiff is an individual and the defendant is a corporation, should not be considered in making up their verdict, and that their verdict should be made up> solely upon the evidence and upon the law-as declared in the instructions, and we have never condemned the admonitions of the courts given in this way. As we take it the instruction above is nothing more than the kindly admonition of the court frequently given in the manner *57 as we have indicated. This contention is therefore ruled against the plaintiff.

V. In the course of the cross-examination of the witnesses produced by plaintiff, the court permitted the defendant, over the objection of the plaintiff, to show that the witnesses were members of the same bakers’ union to which plaintiff belonged. The objections were general ones and we might content ourselves by saying that they were properly overruled for that reason, but will not so say and therefore consider the mat-' ter upon its merits, as if the objections had been filled with substantially stated reasons. In this we may violate established precedent, and we think we do so violate it. Can we say that it is improper thus to inquire of a witness with a view of determining the relationship of the witnesses to the party, as tending to affect the credibility of their testimony? We. think not. We show relationship by blood or marriage, however distant, for that purpose. [State v. Miles, 199 Mo. 530.] In this case it was held that it could be shown that the witness was a suitor of defendant’s daughter as tending to affect the credibility of the witness. We show that the witness and the party are close friends for that purpose. We likewise permit it to be shown that the witness entertains an unfriendly feeling toward the party for that purpose. We cannot blind ourselves to matters of public cognizance. We know that there are close bonds between members of unions, as we know that there are close bonds between the members of any other secret order. We know in the matter of unions, although such unions are and may be.proper, that the purpose thereof is to protect the employee as against the acts of the employer, as well as to elevate the cause of labor itself. In other words there is a dual purpose. We know that in such unions and the members thereof we have fellow-workers in the same cause, as is true of all other secret societies, to which the general pub- *58 lie are not admitted. That there is a brotherly feeling in unions as well as in all other secret orders, there can be no question. Common observation teaches us this. There is fellow-feeling between the members of the Masonic and other orders. Who ever belonged to a school society, and has not in after years felt the warmth of feeling and friendship in meeting another member of the same order, although they were not together at the same time or term. Knowing that these feelings exist shall we close our eyes to the fact that such relationship might influence the testimony and that such relationship, or all other friendly relationships, should not be shown upon the question of the credibility of the witness'? We do not mean that the witness is to be necessarily discredited by reason of the facts, but we do mean to say that such facts are proper to be considered by the jury, in determining the weight of the testimony of such witness or witnesses. It is simply evidence to go to the jury for what it is worth and the jury judges as to the probative force thereof. Nor do we mean to say that unions or secret orders are improper. What we do mean to say is that such relationship may be shown as was done in this ease. On the other hand, had there been a manufacturers’ union, and members thereof had been called for defendant, it would have been proper to have inquired of such witnesses as to whether or not they belonged to such union. There is a close community of interests in all these unions, whether it be of the employee on the one hand or the employer on the other. In each the bonds of union are strong as we are taught by common observation. In each class there is a warmth of fellow-feeling going even beyond the mere domain of friendship. They have a common , business purpose, and are as closely allied in the prosecution of that purpose as would be two partners in a business project. They may not be as closely interested as are partners, but *59 they are interested in the promotion of a certain and definite purpose, and in that, way would be subjected to the same rule. Certainly, it would not be improper to ask a witness if he was not a partner of a party to a suit. We conclude, therefore, that there was no error in the admission of this evidence.

YI. As the case was never submitted to the jury on the question of the assumption of risk, the plaintiff could not have been prejudiced by the court’s refusal to strike out that part of the answer. That portion of the answer was treated as abandoned in the submission of the case. The plea of contributory negligence was sufficiently broad to meet the requirements under our rulings, and there was no error in overruling the motion to make it more specific. However, these matters are not specially urged in the assignment of errors and we may be going beyond the rule to mention them in this opinion. They do appear in the record, however. We have considered all questions of merit, raised by this record, and it follows from what we have said, that the cause was fairly tried and submitted to the jury, and the judgment entered upon the verdict of the jury should be and is affirmed.

Valliant, P. J., and Lamm, J., concur; Woodson, J., dissents in separate opinion filed herewith;