Arizona Lumber & Timber Co. v. Mooney

• Decision Date: 23 December 1895
• Docket Number: Civil 368
• Parties: ARIZONA LUMBER AND TIMBER COMPANY, Defendant and Appellant, v. WILLIAM MOONEY, Plaintiff and Appellee
• Court: Arizona Supreme Court

42 P. 952

4 Ariz. 366

ARIZONA LUMBER AND TIMBER COMPANY, Defendant and Appellant, v. WILLIAM MOONEY, Plaintiff and Appellee

Civil No. 368

Supreme Court of Arizona

December 23, 1895

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Coconino. E. W. Wells Judge.

Reversed.

Norris & Ellinwood, for Appellant.

Stewart & Doe, for Appellee.

Rouse J. Bethune, J., concurs. Baker, C. J., took no part in this case. Hawkins, J., concurring.

OPINION

The facts are stated in the opinion.

ROUSE J.--

This is an action for damages for personal injuries which plaintiff received while working in defendant's sawmill. Plaintiff was operating a certain machine, called a "resaw." It was his duty to insert boards into said machine to be sawed, which work may be called "feeding." His position was in front of the machine while it was in operation, and behind the machine another employee was stationed, whose duty it was to receive the lumber after it had passed through said machine, and dispose of it. While plaintiff was thus engaged in operating said machine, in some way a piece or splinter of a plank which had gone through the machine was caught by the saw and thrown forward. It struck plaintiff in the face, and put out one of his eyes, and that is the injury for which damages are claimed. In plaintiff's second amended complaint, on which the case was tried, is the following: "(3) That on and about the said 10th day of October, 1890, the plaintiff was in the employ of the defendant as a common laborer, and was employed by defendant to perform and discharge such general duties and labor in and around said saw and planing mill as might be performed by any unskilled laborer. (4) That at the time aforesaid the said defendant conducted itself so carelessly and negligently that by and through the carelessness, negligence, and default of said defendant, it provided, used, and suffered to be used an unsafe, defective, insufficient, unguarded, and dangerous certain circular saw, used for ripping boards, commonly called a 'resaw.' (5) That on or about the 8th day of October, 1890, while plaintiff was so employed as aforesaid by defendant, defendant directed plaintiff to assist in the operation of said circular saw, and the machinery therewith connected; that it therefore became the duty of plaintiff, under and by virtue of the instructions of the said defendant, to place lumber in position to be cut by said saw; that the said circular table-saw and the machinery therewith connected were imperfectly constructed, unguarded, defective, unsafe, and dangerous; that said imperfection, defectiveness, inadequacy, and unsafeness of said circular saw and the machinery therewith connected could have been by said defendant discovered and known by the use and exercise by him [it] of ordinary care and diligence; and that the same were, at the time aforesaid known to the defendant, but the same unknown to this plaintiff, William Mooney, and could not have by him been discovered or known by the use of ordinary care and diligence. (6) That plaintiff was inexperienced in the use of said saw and the machinery therewith connected, and ignorant of the dangerous character and condition thereof, and the defendant well knew, at the times hereinbefore mentioned, that plaintiff was so inexperienced and ignorant of the use and management of such machinery, and of the dangerous character and condition thereof; but that defendant negligently and carelessly neglected to and refrained from warning or in any wise informing said plaintiff of the said inadequate, imperfect, unguarded, unsafe, and dangerous condition and character of the said table circular saw and the machinery therewith connected. (7) That for want of due care and attention to its duty in that behalf and by reason of defendant's negligence in maintaining, using, and suffering to be used as aforesaid by plaintiff the said defective, unguarded, and dangerous saw and machinery, on the 10th day of October, 1890, and while the said plaintiff was so operating and working with and about said circular saw, and the machinery therewith connected, a board was caught and thrown by said saw, by reason of the said inadequacy, imperfection, defectiveness, unguarded condition, and unsafeness thereof, whereby the said plaintiff, William Mooney, was struck by said board, . . . without any negligence or fault of said plaintiff, William Mooney. (8) That thereby plaintiff was . . . disabled and disfigured, to his damage in the sum of twenty thousand dollars." For answer, defendant pleaded a general denial, and the only issue thus presented is as to the injury inflicted, and the nature and condition of the said machine.

The pleader in the complaint was very extravagant in the use of qualifying words descriptive of the machine which plaintiff was operating at the time of the injury, but, notwithstanding...