Adams v. Thayer
| Decision Date | 21 May 1928 |
| Citation | 6 S.W.2d 630,222 Mo.App. 907 |
| Parties | LEE ROY ADAMS, RESPONDENT, v. W. B. THAYER, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.
AFFIRMED.
Judgment affirmed.
Mosman Rogers & Buzard for appellant.
Robert O. McLin and James M. Houston for respondent.
Trimble, P. J., absent.
--This is an action in damages for personal injury alleged to have been due to defendant's negligence.
The facts of record are that in the spring and early summer of 1924, plaintiff, a laborer, was employed by defendant on his farm in the southern part of Jackson county, Missouri, formerly known as the Mastin Ranch. A number of other laborers were similarly employed. While plaintiff was so engaged and on June 2, 1924, he was working, at the direction of defendant, with a power-driven circular saw, and while feeding a stick of wood into the saw he was injured by the stick being suddenly jerked, said action forcing his right hand against the saw and severing the second or middle finger thereof. The facts show that the saw in question was driven by a "Waterloo Boy" tractor operated by oil and that the same had been in use on defendant's farm for several years. On the occasion in question it appears the wood being sawed into small lengths, consisted of poles taken from the timber on defendant's farm; that such wood after being sawed was sold by defendant to his employees at the actual cost of production.
The petition is formal and alleges the relative status of the parties and that it was defendant's duty to furnish plaintiff with good and reasonably safe and sufficient tools or machinery with which to work, but that defendant disregarding and neglecting his duty in that behalf, negligently and carelessly furnished him with a circular saw about thirty-six inches in diameter, set on a wooden frame without any shield over the saw to protect the operator or workmen, and without any off-bearing table; without anything to catch the wood, and without any safety guard whatever to protect plaintiff from coming in contact with the saw; negligently and carelessly furnished plaintiff with a saw which was dangerous to operate and dangerous to use because there was no safety guard or any provision or device to protect plaintiff or anyone working about, or using same from coming in contact therewith; negligently and carelessly ordered or directed plaintiff to saw wood with said saw which was dangerous because there was no safety guard, or any guard or protection to prevent plaintiff from coming in contact with the said saw and with the edge and teeth thereof; that defendant furnished plaintiff for use in sawing wood a power-driven circular saw, without any guard or guards which raise and lower automatically for various thicknesses of material, and without any safeguards whatever; that the said condition of said saw and all of said defects were known to defendant, or with the exercise of ordinary care on his part, might have been known to him. Judgment is sought in the sum of $ 5,000.
The third amended answer is, first, a general denial, and as affirmative defense the answer pleads assumption of risk and contributory negligence in that plaintiff took a short piece of wood and endeavored to cut a few inches therefrom, at the same time holding said stick in both hands when "it was unnecessary to cut said stick in that manner;" and in attempting to cut said stick of wood without placing and holding it upon the saw table and without the aid and use of the same; that plaintiff was negligent in attempting to saw said stick without waiting for assistance which he could have done; that said negligent acts of plaintiff caused or contributed to any injuries he may have received. The answer further avers that there was no legal duty resting upon defendant to provide any guard for said saw because defendant, at the time, was not engaged in any manufacturing or mercantile business, but was engaged solely in agricultural pursuits, and that said saw was used solely for farming purposes. The answer further pleads that if section 6787, Revised Statutes 1919, was intended to and does apply to farmers and persons engaged in agricultural pursuits, the same is unconstitutional and void, and in conflict with section 28, article IV, of the Constitution of Missouri and in violation of the Fourteenth Amendment to the Constitution of the United States.
The reply was a general denial.
The cause went to trial before the court and jury upon the pleadings thus made. At the close of plaintiff's evidence defendant offered an instruction in the nature of a demurrer which the court marked "Given" but before said instruction was read to the jury, the plaintiff took an involuntary nonsuit with leave to move to set the same aside. In due time plaintiff filed a motion to set aside the involuntary nonsuit which was sustained, and from this order of the court sustaining the motion to set aside the nonsuit, defendant has appealed. The only error assigned is that the court erred in sustaining plaintiff's motion to set aside the involuntary nonsuit.
It is urged the statute requiring the guarding of saws does not apply to defendant because he is a farmer and not engaged in any mercantile business and consequently plaintiff could not recover against him on the ground that defendant had violated the statute (sec. 6787, Revised Statutes 1919; Laws of 1801, p. 159) commonly known as the "factory act." It is argued that under the provisions of said section it is the duty of the state industrial inspector to inspect all mechanical and mercantile establishments where dangerous machinery is used and that the state industrial inspector has construed the act as not applying to farmers, and consequently, such construction will be adopted by the courts, if not unreasonable. [Citing Ross v. Railroad, 111 Mo. 18, 25; Westerman v. Supreme Lodge, 196 Mo. 670, 94 S.W. 470; State ex rel. v. Job, 205 Mo. 1, 103 S.W. 493.]
Section 6787, Revised Statutes 1919, reads as follows:
"All power-driven circular saws must be provided with safety guards which raise and lower automatically for various thicknesses of material, and must also be provided with a kickback dog to prevent the board binding on the saw and flying back. Said appliances shall be subject to the approval of the state industrial inspector, his assistants or deputies. [Laws 1919, p. 443.]
Plaintiff insists that the provisions of the section just quoted apply to all power-driven circular saws and must be held to apply to farmers because not exempt by any specific wording therein.
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Johnson v. Bear
...are without precedent in this State to aid in the decision of the precise question presented in the case at bar. In the case of Adams v. Thayer, 222 Mo.App. 907, one of defenses presented was that defendant was engaged solely in agricultural pursuits and there was no legal duty resting upon......
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Johnson v. Bear.
...are without precedent in this State to aid in the decision of the precise question presented in the case at bar. In the case of Adams v. Thayer, 222 Mo. App. 907, one of the defenses presented was that defendant was engaged solely in agricultural pursuits and there was no legal duty resting......