Rendlich v. Hammond Packing Co. , 106 Mo. App. 717 ( 1904 )

ELLISON, J.

The plaintiff’s action is for personal injuries. He prevailed in the trial court.

It appears that plaintiff was in the employ of defendant in its packing house in St. Joseph. That his work was designated as that of a “splitter:” that is, he split recently slaughtered hogs with a cleaver. The hogs were suspended by hooks attached to rollers, the latter running along a rail: that is, they were drawn along the rail by a chain and thus the hog would be taken to the place where plaintiff performed the work of splitting it in halves. There was what is called a “steadying board” the office of which was to hold the hog in position while the splitter clove it in two. The evidence showed that it was necessary to have such device so that the stroke of the cleaver would be true; otherwise, if the hog shifted position the cleaver was apt to glance and injure the person using it.

The rollers were shown to have been in bad condition in more than one respect.. Some of them would not revolve, or would not do so freely, and thus as they were pulled by the chain would jerk, or jump, as stated by plaintiff and other witnesses. There was also testimony tending to prove that this steadying board had two loose boards at the back and that it was somewhat worn on the side where'first struck by the suspended hogs being pulled along as described.

At the time of the accident plaintiff had made one or more strokes and in attempting another, the hog’s position was slightly altered and the cleavér glanced through the neck of the hog on into plaintiff’s foot, inflicting the injury for which he sues.

There was a demurrer to the testimony which the trial court refused and defendant urgently contends that it should have been given, on the ground that there was no evidence that the injury happened by reason of a defective steadying board. The petition charged (though it was abandoned at the trial) that the rollers were left negligently out of order so that they would not work properly. There is much of the evidence in behalf of plaintiff which can reasonably be said to show that the defective rollers caused the jerking of the hog as it would be pulled along and that the misstroke made by plaintiff which cut his foot was the result .of that cause. But we have concluded there was sufficient evidence directed to showing defects in the steadying board and that that caused the injury, to justify the court in refusing the demurrer.

But the case is a close one, and on account of the mingling in the petition and in the evidence of defective rollers causing uneven and jerking movements in the animal swinging from these rollers, and the somewhat confused state of the evidence as to which of these was the proximate cause of the injury, we have concluded that plaintiff’s instructions are faulty to such degree as in all probability to confuse the jury.

The first instruction after having referred to the rollers and to the board, then submits that, if “said board or device provided for holding said hogs in proper condition was loose and out of place,” etc.

The second instruction submits, that though plain-.tiff had knowledge of the condition of the “appliance or steadying board” and that the use of said appliance in its then condition was dangerous, etc., repeating the word “appliance” twice more.

The third instruction repeats the fault of the second and closes by stating that in the situation'to which it refers, “plaintiff had a right to rely upon the safety of said appliances and that defendant would remedy said defects within a reasonable time and continue working said appliances.” In thus using the plural in referring to the appliances which defendant used in bringing the hogs.to where plaintiff stood, the instruction would necessarily lead the jury to believe the rollers which caused the jerking, were included.

We are aware, of course, that it is a frequent mode of expression in instructions to use two words interchangeably, which are intended to convey and do convey the idea that only one object is referred to, and the same thing meant by the use of either. But the condition of the case justifying such mode of expression, is not found here. For, as has been already stated, the pleading and the evidence, especially as the latter was emphasized by plaintiff himself, would naturally lead the jury to consider defendant at fault on account of the rollers. On retrial, the safe way to do is to confine the instructions strictly to the steadying board, as it is negligence in that regard upon which the case is based.

Reversed and remanded.

All concur.