Ash v. Woodward & Tiernan Printing Co.

• Decision Date: 03 December 1917
• Docket Number: No. 18776.,18776.
• Citation: 199 S.W. 994
• Court: Missouri Supreme Court
• Parties: ASH v. WOODWARD & TIERNAN PRINTING CO.

199 S.W. 994

ASH v. WOODWARD & TIERNAN PRINTING CO.

No. 18776.

Supreme Court of Missouri, Division No. 1.

December 3, 1917.

Motion for Rehearing Denied December 22, 1917.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by John Ash against the Woodward & Tiernan Printing Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

On March 19, 1914, plaintiff commenced an action in the circuit court of the city of St. Louis, Mo., to recover damages from defendant on account of an injury sustained by him on the 23d day of April, 1913, while in the service of defendant, in the city of St. Louis, in the capacity of an operator of a paper-cutting machine. The petition charges defendant with general negligence in failing to furnish him reasonably safe instrumentalities with which to work and a reasonably safe place in which to work, etc. The defendant admitted its incorporation, denied all the other allegations of petition, and pleaded contributory negligence and assumption of risk upon the part of plaintiff. The reply is a general denial of the new matter pleaded in the answer.

Plaintiff's Evidence.—It appears from plaintiff's evidence, adduced at the trial, that on April 23, 1913, the above defendant was operating in St. Louis, Mo., a large printing and bookbinding establishment, and in connection with said work operated in said plant many machines. Plaintiff, a man 43 years of age, was working for defendant on above date and had worked for it off and on for many months. He had had large experience as a bookbinder and cutter, was thoroughly familiar with the duties attached to this position, and was thoroughly competent to discharge the duties of same. On the above date, and for a week prior thereto, he had been operating a cutting machine for defendant in said plant.

Respondent testified, in substance, that he was not a practical machinist, and had no knowledge of the intricacies of machinery; that he knew nothing about the mechanical parts of the machine in question that controlled the starting and stopping thereof; that he was charged with no duty which required him to possess knowledge of these parts, or to make inspections of the machinery for latent defects or to report or repair the same; that, on the contrary, his duties had to do solely with the practical operation of said cutting machine and were limited to the following: Spending about 20 minutes every morning oiling and wiping said machine; shifting the lever that started the electric motor connected with said machine; adjusting the knife or blade that does the cutting; placing books in said machine to be cut; clamping said books by moving a treadle with his foot; moving a safety handle and shifting a lever by which power is transmitted to the machine and the knife thereof is made to descend; that on said morning he oiled the machine as he had been doing every morning, and wiped off the machinery where the oil ran down, so as to keep the paper clean; that he oiled the machine as he had been instructed to do by appellant; that there were from 12 to 15 holes which needed oiling. He testified that on above date he was trimming the edges of what are denominated "Doctor Books"; that he would place 50 of these books in the machine at a time; that the books were pressed by a clamp, which would occupy a vertical space of three inches, but when not clamped the books would be some looser, and would occupy a little more space; that under the above conditions the knife or blade in the machine would be about three-quarters of an inch above the books; that, after placing the books in the machine, he would put his foot on the treadle and cause the clamp to come down; that this would break the back of the books; that he would then release the treadle, and the clamp would ascend; that about two feet to his right, while facing the machine, was a lever that was used to put the knife in motion, and there was a safety handle on the top of this lever; that in order to shift the lever this safety handle would have to be moved, and then the lever would have to be pulled by the operator; that the mechanism of said machine was such that normally, after the knife had descended and cut the books, it would rise automatically to its original position, the lever would come back to its original position, and the safety handle contrivance would lock the lever; that he had nothing to do with rethrowing the lever in position, as it worked automatically and would spring back to its position.

At the time of the accident the respondent was at his regular place, facing the machine. He says the machine was then at rest, and the knife was at its elevated position. He had placed 50 books in the machine, and had placed his foot on the treadle and caused the clamp to descend to break the back of the books. He had just released the treadle so that the clamp would ascend, and while both hands were over the books adjusting same, the blade or knife suddenly and unexpectedly descended with rapidity; that nothing was done to the lever; that he had not reached over and turned the lever; that you could not keep it unlocked without holding it there. When the knife came down, respondent had all of his fingers on top of the books and his thumbs underneath the same in the usual manner, in which he had been instructed; that the knife in descending, cut off his fingers, went through the books, and cut his thumbs; that he could not tell what caused the knife to fall. If he knew of any part of the machine being out of order and it bothered him, he was expected to report its condition.

Plaintiff testified that, when injured, he was doing the work in the usual manner and as he had been instructed by appellant to do it; that never before while he was working at said machine had the knife ever descended in this manner without the safety handle being moved and the lever being shifted. The clamp had nothing to do with the tripping of the lever, and would go down without the knife, by pressing the foot on the pedal. When the foot was removed from the pedal, the clamp would go back to its normal position. When the knife was at rest, it was from 1½ to 2 inches above the books. Witness said that, in order to trip the machine, it is necessary to turn the lever to the right, and then pull it towards you. The knife would then come down fast. Plaintiff testified as follows:

"Q. So if I understand you rightly, in order for you to trip this machine and get both hands in so that they could be caught, you would have to turn this lever and pull it over and release it and shove it under, all while the knife was traveling the distance of three-quarters of an inch? A. Yes, sir. Q. Did you do that? A. No, sir; I never touched the lever at all."

On cross-examination witness testified:

"Q. Well, it is part of a bookbinder's business, isn't it, to know how to run a cutting machine at the same time? A. Yes, sir; just to operate it; he isn't supposed to know anything about the machinery part of it. Q. He is not supposed to be a mechanic or a machinist? A. No, sir. Q. But he is supposed to know how to run a cutting machine, a bookbinder? A. Yes, sir; anybody can run it; you could run it; you can pull that handle over."

He testified that the flywheel and motor were boxed over, and that it was dark under the boxes; that some of the machinery was covered up by these boxes.

On cross-examination plaintiff testified that he was operating the machine in the usual and ordinary way at the time he was injured, and that he does not know why the knife came down at that time. The evidence shows that the knife weighed about 1,200 pounds.

Mr. John Henry Kinealy, a mechanical engineer, and graduate of Washington University, was appointed to examine the machine which injured plaintiff, and, after describing its mechanism, etc., at great length, he testified as follows:

"When the machine is in normal working order, the result of the flying up of the knife is in every instance to return the lever to its position from which it was unlocked by the operator; there would be no exception to that in a properly working machine. In order to get the knife to come down it would be necessary that the handle at the top of the vertical lever should be turned to release the safety device, and that the vertical lever should be turned towards the left. Q. In a machine of this character working properly and normally could this handle or lever be so left that the safety device would not be locked or in position? * * * A. No, sir; it could not."

Witness gave it as his opinion that plaintiff could not have removed one hand from the books, operated the lever, and returned his hand so as to have had his fingers cut off as described. He further testified as follows:

"Q. What, then, is the fact as to whether it would be possible for this machine to be tripped in such a case, without the operator pulling the lever, turning and pulling the lever? A. That might be possible, because the lever carrying the overweight which is shown towards the right end of the picture shows a dented or notched place where that lever struck against a part of the mechanism below, when the clamp was allowed to come up suddenly."

The witness pointed out some worn or defective places in the machinery which, in his opinion, might have caused the knife to move. He thought, if the knife came down as described by plaintiff, that the machine must have been defective. He said the spring that returns the safety arm to its position so as to lock the machine might have become worn, or the parts might have gotten out of adjustment, so that the safety did not return to its proper position.

Harold B. Woodward testified that he was superintendent of defendant, and one of its directors; that the plant had six floors and a basement; that, if everything were classed as a machine, there might be a couple of thousand of them. He said the machine which injured pl...