Carlisle v. Tilghmon

• Decision Date: 16 December 1941
• Docket Number: 37721
• Citation: 159 S.W.2d 663
• Parties: CARLISLE v. TILGHMON et al
• Court: Missouri Supreme Court

159 S.W.2d 663

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 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 defective in that the threads holding said guide in place had become worn and would not hold or that the saw used in said saw mill and about which plaintiff was working was not in a reasonably safe condition by reason of being out of balance or otherwise, * * * and that said injuries were caused by the defective condition of the said saw guide or the said saw then and in that case your verdict should be for the plaintiff and against the defendants.'

Respondents contend that the fact, if it were a fact, that the saw was out of balance or that the saw was otherwise defective, had no connection with causing plaintiff's injuries, and therefore this charge of negligence should not have been submitted to the jury. It will be noted that the charges of negligence were submitted in the alternative. Respondents also complained of the further direction in the instruction which reads: 'You are further instructed that if you find no evidence or circumstances in evidence to the contrary you may assume that the defendant' (meaning plaintiff) 'at the time he was injured was in the exercise of ordinary care.' Respondents further contend that the evidence disclosed plaintiff to have been guilty of negligence as a matter of law.

The evidence as to the cause of plaintiff's injuries was definite and certain. Plaintiff testified that the threads of a set screw holding a guide in place had worn to such an extent that it was necessary to reinforce it with a piece of tin so that it would hold; that even then the screw would work loose two or three times a day requiring him to adjust and tighten it; that the head of this set screw was supposed to be square for the purpose of holding a wrench when tightening the screw; that the head was worn and rounded that at the time he was injured the wrench slipped off the rounded head causing his hand to come in contact with the saw which was in motion. Plaintiff and a number of other witnesses testified that it was impossible to properly adjust and set the guide while the saw was at a standstill. On the other hand, the defendants introduced substantial evidence that the set screw or the guide could have been and should have been adjusted and tightened while the saw was not running; that the saw could have been adjusted while running by means of another gadget on the saw. The defendant, Chandler, also testified that he did not know of the defect in the set screw and had plaintiff advised him of the fact he would have had it fixed or replaced. Plaintiff testified on this point as follows: 'I told Mr. Chandler twice that the guide was in bad shape and not fit to use, and needed something done about it, and he said, we didn't have one and didn't know where to get one, and we didn't...