Reisert v. Williams
Reisert v. Williams
Opinion of the Court
The plaintiff, a boy fifteen years of age, was employed by the defendant as an apprentice in a blacksmith shop. His duties among other things consisted of working the bellows of the forge and attending to its fire. After he had been thus employed for about two months, the bellows exploded and caused a piece of iron about thirty pounds in weight, which was on top of the bellows, to fall on his toe, mashing it, in consequence whereof he was disabled from work for about three months, and had some of the bones of the toe extracted, suffering great pain and permanent disability in the use of his toe. He thereupon brought the present action, and upon a trial thereof before a jury recovered a verdict and judgment for $300, from which the defendant appeals.
The petition charges the negligence causing the injury to have consisted of the facts that the flue of the forge was negligently constructed and out of repair, and the bellows and forge was an unsafe and dangerous implement to operate unless the manner of its operation was thoroughly understood, and yet, although it was the defendant’s duty to instruct the plaintiff how such bellows should be operated, • he failed to do so, whereby the accident occurred resulting in plaintiff’s injuries. The answer, which was replied to, was a general denial and a plea of contributory negligence.
At the close of the plaintiff’s case the defendant 'moved for a nonsuit which the court refused, and this is the first error complained of.
The plaintiff’s evidence, which alone we can consider in determining the propriety of the action of the court in this particular, tended to show the following facts: Explosions of bellows are generally caused by
It will appear from the foregoing statement that the court did not err in refusing to instruct the jury that the plaintiff could not recover on this evidence. ,‘Employers are bound to furnish theix employes with a reasonably safe place in which to work, considering the character of their business, and are bound to see that their employes have reasonable notice of any hidden danger, known to the employer, but of which
The first instruction for plaintiff is challenged on the ground, that it fails to connect the negligence charged therein with the cause of the accident. This assignment rests upon a misconstruction of the instruction, and must likewise be overruled. After submitting for the jury’s finding the various acts of negligence charged, the instruction submits to their finding the further condition that the plaintiff was “injured in consequence thereof,” thus distinctly telling them that they must find, as conditions precedent to plaintiff’s recovery, both the negligence as charged and its having brought about the injury. The instruction on that head might have been more specific, but it is hardly conceivable that the jury were misled by the abbreviated form into believing that the proof of negligence
The defendant asked, and the court refused to give, the following instruction, which is assigned for error: “The court instructs the jury that, if they find and believe from the evidence that the plaintiff had been at work in defendant’s shop for a time long enough to make him acquainted with the dangers incident to an improper handling of a bellows attached to a forge; that he had frequently been at work on the bellows and forge in question, and was old enough to know the danger of an explosion of the bellows when improperly used, and that the accident complained of happened from an incautious handling of .said bellows by him, then such was an act of negligence on his part directly contributing to said accident, and he is not entitled to recover.”
Defendant contends that a similar instruction was approved by the supreme court in Dowling v. Allen, 102 Mo. 218, on the last appeal of that much litigated case. The only instruction given for the defendant in that case, which bears on this question, is the following: “3. If the jury find from the evidence that the shaft and set screw upon which the plaintiff was injured were in the same condition in respect to guards or protection in which they were at the time plaintiff entered defendant’s employ, and that the danger of such condition, if any, was open and apparent to common or ordinary observation, the verdict must be for defendant.” Now, while in the Bowling case the instruction was given for defendant and the defendant appealed, and, hence, it cannot be said that the instruction was approved, yet the difference between the two instructions is very obvious. In the last case the question submitted to the jury, as debarring the plaintiff from
The only other complaint is that the verdict is opposed to the weight of the evidence to an extent indicating bias and prejudice on part of the jury, and that the court erred in not vacating it for that reason. "We have decided in Taylor v. Architectural Co., 47 Mo. App. 257, that the change made in the practice act by the law of 1891 does not materially affect the principles of appellate procedure; hence, we cannot vacate a verdict because opposed to the weight of the evidence, unless it is so opposed to all the probabilities as to clearly indicate bias. There was substantial evidence to support the plaintiff’s case in every element essential to his recovery, nor is there anything highly improbable in his testimony or that of his witnesses, nor does the moderate amount awarded to him by the jury show any prejudice on their part against the defendant.
All the judges concurring, the judgment is affirmed. It is so ordered.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.