159 S.W.2d 663 (Mo. 1941), 37721, Carlisle v. Tilghmon

Docket Nº:37721
Citation:159 S.W.2d 663
Opinion Judge:WESTHUES, Commissioner. Per Curiam.
Party Name:CARLISLE v. TILGHMON et al
Attorney:Edward F. Sharp, of New Madrid, for appellant. Ward & Reeves, of Caruthersville, for respondents.
Judge Panel:BOHLING and BARRETT, CC., concur.
Case Date:December 16, 1941
Court:Supreme Court of Missouri
 
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Page 663

159 S.W.2d 663 (Mo. 1941)

CARLISLE

v.

TILGHMON et al

No. 37721

Supreme Court of Missouri, Second Division

December 16, 1941

Rehearing Denied March 13, 1942.

Edward F. Sharp, of New Madrid, for appellant.

Ward & Reeves, of Caruthersville, for respondents.

OPINION

WESTHUES, Commissioner.

This is a suit in which plaintiff seeks damages for personal injuries sustained while working at a saw mill. Plaintiff's

Page 664

theory is that the defendants furnished him unsafe tools with which to work, causing him to be injured. A trial resulted in a verdict for plaintiff in the sum of $ 10,000. A new trial was granted and plaintiff appealed.

Plaintiff's petition, after alleging that the defendants, O. P. Tilghmon and Dan Chandler, were the owners of a saw mill; that plaintiff was employed by them and it was their duty to furnish a reasonably safe place to work and reasonably safe tools etc., charged negligence as follows:

'* * * but plaintiff says that defendants wholly disregarded their duties in that behalf and furnished him with an old worn out and defective saw guide in this: That the screws and the screw threads of said saw guide were old, worn out and would not hold and maintain said saw guide in the adjustment thereof and that the circular saw used on said saw mill was old and out of balance and out of shape, and was unsafe to use and that in its unsafe condition it required frequent adjustment or it would not saw the lumber in a good and workmanlike manner, all of which defects were known to the defendants, * * *'

'* * * and plaintiff says that while using said defective machinery the said saw guide, on account of defective condition of said saw, or otherwise, became loose, and that it was necessary to adjust same and tighten said saw guide so that said saw would properly saw lumber, and that plaintiff, while in the exercise of due care, was attempting to adjust said saw guide, which, on account of its defective screw adjustments had become loose, plaintiff's right hand was caught in the saw, * * *'

The trial court sustained defendants' motion for new trial because of error in instruction number one, given on plaintiff's behalf. This instruction reads in part as follows: '* * * if the jury find and believe from the evidence in this case that on the 17th day of June, 1939, the defendants were the owners and operators of a saw mill located at Baderville, Missouri, and that they were using on said saw mill a saw guide which was worn out and...

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