Barker v. Hemphill Lumber Co.

• Decision Date: 14 January 1920
• Docket Number: No. 2518.,2518.
• Citation: 217 S.W. 585
• Parties: BARKER v. HEMPHILL LUMBER CO.
• Court: Missouri Court of Appeals

217 S.W. 585

BARKER v. HEMPHILL LUMBER CO.

No. 2518.

Springfield Court of Appeals. Missouri.

January 14, 1920.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Edward Barker, by next friend, against the Hemphill Lumber Company, a corporation. From judgment for plaintiff, defendant appeals. Affirmed.

Ely, Pankey & Ely, of Kennett, for appellant.

Jno. A. McAnally and Smith & Bradley, all of Kennett, and A. T. Welborn, of Bloomfield, for respondent.

FARRINGTON, J.

The plaintiff, a minor, sues by his next friend, recovering a judgment for $2,000 against the defendant below, appellant here. The principles of law governing the duties of master to servant in negligence cases are involved in this appeal. The facts disclose that the plaintiff was employed at defendant's sawmill, working at what is known as a dogger, whose duty it was to ride on a carriage and to secure the logs on this carriage. The machinery operating this carriage is what is termed a "shotgun feed," which was operated, started, stopped, and controlled by defendant's sawyer by means of an iron lever which extended through and beneath the floor on which the operator stood. This lever stood in an upright or almost vertical position, the lower end of which beneath the floor connected with a horizontal iron rod or bar, the vertical lever passing through a hole in the end of the iron rod, and made secure therein by means of a set screw. On the lower end of the vertical lever and beneath where it passed through the horizontal rod and the set screw was a hole, in which it was intended to fasten by swinging a heavy iron ball under the vertical lever which by its weight would bring the perpendicular lever to dead center. The rod leading from this lever attached thereto by the set screw ran to that part of the machinery that operated the gunshot feed. The set screw served two purposes: First and principally, to hold the rod in a secure position to the lever; and, second, to permit different operators to shift the vertical lever up and down to best suit the reach in handling it.

The testimony disclosed that the iron ball which hung from the bottom end of the vertical lever had been removed, and that it was not an unusual thing for operators of this machinery to take the ball off. Nothing was put in the hole to take its place. The testimony tends to show that, if the ball had been left on, or that if a cotter pin or bolt had been placed in the hole from which the' attachment to the ball had been removed, then the rod which fastened to the lever, and which also ran to open or close the steam, would not have become entirely disconnected with the lever, even though the set screw came loose, which happened in this case. It is further shown, that, if a disconnection is made when the machinery is in operation, the man who handles the lever loses control of the machinery because he cannot shut off the steam and stop the carriage, and if this takes place while the carriage is in motion it will bounce back and forth with great force, placing the man on the carriage as plaintiff was in great peril.

In this instance the lever and the rod were disconnected because the set screw became loosened. The carriage was bounced back and forward a number of times, throwing off the plaintiff, who was working on it, breaking his arm and permanently injuring it, cutting a gash in his head, and bruising him.

There is no contention made here that the amount of the verdict is excessive if liability exists. The charge of negligence in the petition was as follows:

"That the defendant had carelessly and negligently permitted said set screw which held said lever and iron bar together to become loose, and had negligently and carelessly failed to put and keep in the end of said lever the said cotter key, and said defendant knew, or by the exercise of ordinary care and diligence could have known, that the said set screw had become loosened, and that there was no cotter key in the end of said lever, and as the direct result of the said carelessness and negligence of the defendant and of the loosening of said set screw and the absence of said cotter key, the said lever and iron bar did at the said time, and while the plaintiff in and under his employment as aforesaid was on the said log carriage, and after the steam had been applied as aforesaid for the purpose of moving the said log carriage forward, and while the said log carriage was moving forward, became disconnected so that the said log carriage, while the plaintiff was on the same as aforesaid, and after the same had been started forward by the application of steam, with great force and at a high rate of speed, could not be stopped or controlled."

The answer of the defendant was a general denial and a plea of assumption of risk. The evidence tended to show that the foreman had not examined the set screw for a period of about four months prior to the injury. The petition, as shown by the charge we have set out, really placed a failure of duty in permitting the rod and lever to become disconnected, in that the set screw was negligently permitted to become loosened, and that the defendant did not place a cotter key in the hole made vacant by the removal of the swinging ball, the presence of which would have prevented the disconnection of the lever and the rod, the severance of which lost all control of the gunshot feed and the carriage while in motion.

The case was submitted to the jury on both charges of negligence combined. The appellant is insistent that its instruction in the nature of a demurrer to the evidence should have been sustained, and this because it claims that the evidence clearly shows that the swinging ball is very often removed, and that nothing is placed in the hole to take its place, and in this respect it conducted its business as those who operate this character of machinery ordinarily and usually operate these machines.

We are inclined to the view that appellant's contention is correct in so far as showing a failure of duty in placing a cotter "pin or bolt in the hole, as practically all of the evidence shows that defendant did in this respect what those in this business ordinarily do, which has often been declared concerning...