Atchison

• Decision Date: 05 November 1887
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. F. M. MCKEE

15 P. 484

37 Kan. 592

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. F. M. MCKEE

Supreme Court of Kansas

November 5, 1887

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Shawnee Superior Court.

THIS cause was tried in the superior court of Shawnee county, in June, 1885. The defendant in error as plaintiff recovered a judgment for $ 2,000. He had been employed in the car-shops of the defendant, at Topeka, Kansas, and while sawing truss-rod blocks had his right hand cut off at the wrist. He complains in his petition of three distinct grounds of negligence on the part of the defendant: first, that the timber furnished him for sawing was shattered and riven second, that the saw furnished him was cracked, with broken teeth, and unsafe; third, that the table or frame which held the saw was insecure, not holding the saw firmly, so that when it was used in sawing it would vibrate or wabble. It appears that while sawing a block, a wedge-shaped sliver or splinter was sawed off inside the block, and falling down beside the saw, wedged it; the block was thrown out, or "kicked," as it was termed in the evidence, and the wrist of his right arm fell upon the saw and was severed. The saw in question was claimed to be defective in this, that one tooth was out, and from the place where it was broken a crack in the blade of the saw extended about four inches; on the opposite part of the saw was another crack, extending about two or three inches, and there is some testimony of still another smaller crack in the saw-blade at another place. This saw was hung up on a post back of the table which held the saws used by the plaintiff. Each table was furnished with several saws, which could be taken off and put on when needed, and for this table six or eight were given to plaintiff. He had noticed that this saw was defective, and had put it upon a peg next to the post and hung other saws over it. The morning that this accident occurred he had been at work at his bench using another saw, for the purpose of sawing lighter material than truss-rod blocks. He had been called away on business to another part of the shop, and while absent some person went to his frame, took off the saw he had been using, and fixed the saw in question thereon. He returning, noticed the pile of timber to be sawed into truss-rod blocks lying beside the frame, and seeing another and larger saw than the one he left on the table, lowered it, as he could by means of machinery, and proceeded to saw the block in question. He was injured in sawing the first block.

In regard to the table upon which this saw was placed, there was evidence introduced tending to establish these facts: It was of a pattern unlike any other frame or machine in the shops of the defendant, but one of the witnesses testified that he had seen such a one in car shops in the east. The mandrel that held the saw where it went into the arbor had worn a little, and had been loose before; the person who had used this machine before the plaintiff had allowed it to heat and become worn, and it had been repaired by putting in babbiting metal. The plaintiff had often complained of this table or frame, and the vibration or wabbling of the saw, and it had been fixed by Mr. Young, who was an assistant of a Mr. Cook, who was the man who looked after the machinery in the shops. On the Friday or Saturday prior to the Monday upon which this accident occurred, the plaintiff had complained to Mr. Young of the vibration of the saw, and Mr. Young on Saturday night tightened the screws and fixed the machine, as he told the plaintiff Monday morning before commencing work. The plaintiff did not notice the vibration of the saw when he first went to work Monday morning at the light stuff, but when he returned and commenced to saw the heavier material, he discovered it upon sawing the first half of the first block. After the accident this frame was continued in use, but after some time there was a wooden screw fixed to the side, and slats were added to the frame to make it firm.

The following are the questions submitted at the suggestion of the defendant, and answered by the jury:

"1. Was not the plaintiff injured by having his hand cut on a circular saw, which he was engaged in operating at the car shops of the defendant, in Topeka, on or about the 26th day of February, 1883? Ans.: Yes.

"2. Had not plaintiff been engaged in the operation of said machine for about two years to the day on which he was injured? A. About one year.

"3. At the time of the injury to plaintiff, were there not a number of saws hanging on a peg at said sawing machine, any of which the plaintiff could have used if he thought proper? A. Yes.

"4. Did not the plaintiff, at several times while he was working the said machine, complain to Mr. Young and ask that said machine be repaired? A. Yes.

"5. Did not Mr. Young, at each time that the plaintiff complained of said machine, go to the same and repair it by fixing the journals or tightening the bolts, or both? A. Yes, but not substantially.

"6. Did not the plaintiff, on Friday or Saturday before the accident, complain to Mr. Young of said machine and ask that it be repaired? A. Yes.

"7. Did not Mr. Young tell plaintiff that he would repair the machine before Monday? A. Yes.

"8. Did not Mr. Young, before Monday, February 26th, 1883, repair the machine on which plaintiff was working, by fixing the journals and bearings, and by tightening the bolts at the end of the frame in which the saw was set? A. Yes.

"9. Had not the kind of repairs which Mr. Young put on the machine just prior to the accident, been sufficient to remedy the vibrating and other defects previously complained of by plaintiff, at every time it was repaired by him prior to the last repairs before the accident? A. No.

"10. On Monday morning, February 26th, 1883, did not the plaintiff go to said machine and use the same until about 10 o'clock, sawing out material to be used in the manufacture of cars? A. Yes, on light material.

"11. After the plaintiff had completed the work which he was on the morning of the accident and the board had been carried away, did he not leave said machine for about thirty minutes and go into the yard? A. Yes.

"12. While plaintiff was absent from said machine for about thirty minutes, did not some one go to said machine and take off the saw which plaintiff had been using and put on a larger saw? A. Yes.

"13. When plaintiff returned to said machine after his temporary absence, did he, or did he not, know that some one had taken off the saw which he had been using and replaced the same with a larger saw? A. Yes.

"14. Did plaintiff before commencing work again on said machine stop the saw for the purpose of seeing what saw had been placed on said machine during his absence, and whether the same was in good or bad condition? A. No.

"15. Did the plaintiff, prior to commencing work with said machine after his temporary absence, examine the rest of the saws hanging on the peg to ascertain whether a defective saw had been placed on said machine or not? A. No.

"16. Did the plaintiff in working with said machine on said Monday morning notice any defect in said machine prior to his temporary absence from the same and the changing of the saws thereon? A. No.

"17. Who put the saw, which injured the plaintiff, on the machine? A. Some one acting under general orders of defendant.

"18. About how many saws were there at the table at the time plaintiff was injured? A. From 6 to 10.

"19. Had plaintiff prior to the time of his injury been engaged in sawing the same kind of blocks which he was then commencing to saw? A. Yes, but not that day.

"20. Were any saws furnished said machine suitable for the class of work which plaintiff was engaged in at the time of his injury, other than the saw which he claims he was then using and if so state how many? A. Yes, two.

"21. Had the plaintiff the right, in selecting the blocks which he was about to saw up, to discard and throw away those which he considered unsuitable for the purpose, or dangerous to use? A. He had the right to discard.

"22. Did plaintiff examine the piece of wood which he was engaged in sawing at the time of the accident, before commencing to saw the same? A. Yes.

"23. Had not plaintiff, just prior to the accident, passed the block of wood, which he was sawing at the time of the accident, twice through the machine, thus cutting off one side of the same? A. Yes.

"24. When did plaintiff first notice on Monday that the machine was defective, or not working properly, if at all? A. On sawing first block.

"25. Did the plaintiff, at any time on Monday, February 26th, complain of the condition of said machine, and if so, to whom did he make said complaint on said day? A. No.

"26. Had not the plaintiff the right to refuse to work with, and to discard and lay aside, any one of the saws furnished to his table whenever he considered them unsuitable or unsafe to be used on the work which he was engaged at? A. Yes.

"27. What was the condition of the saw which plaintiff was using at the time he was hurt; please describe the same fully? A. A saw from 14 to 16 inches in diameter, one tooth out, and two or more cracks.

"28. Did the condition of the saw which plaintiff was using at the time of the accident contribute in any manner to his injury? A. It might, or it might not.

"29. If you answer the last question in the affirmative, please state fully how it so contributed. A. .

"30. Would the plaintiff have used the saw which was on the machine at the time he was hurt if he had known that that saw was on? A. No.

"31. Did not the saw at the time of the accident in cutting through the piece of wood cut off and loosen next to the top of the table a...