Brown v. John M. Darr & Sons Planing Mill Co.

• Decision Date: 06 January 1920
• Docket Number: No. 15620.,15620.
• Citation: 217 S.W. 332
• Court: Missouri Court of Appeals
• Parties: BROWN v. JOHN M. DARR & SONS PLANING MILL CO.

217 S.W. 332

BROWN v. JOHN M. DARR & SONS PLANING MILL CO.

No. 15620.

St. Louis Court of Appeals. Missouri.

January 6, 1920.

Rehearing Denied January 22, 1920.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

"Not to be officially published."

Action by Nolan S. Brown against John M. Darr & Sons Planing Mill Company. From a judgment for plaintiff defendant appeals. Affirmed on condition plaintiff enter remittitur.

Geo. W. Lubke and Geo. W. Lubke, Jr., both of St. Louis, for appellant.

Burr S. Goodman and Alfred J. Strobans, both of St. Louis, for respondent.

BECKER, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while employed as a millworker in a planing mill owned by the defendant. The suit was tried to a jury, resulting in a verdict in favor of the plaintiff for $1,233, and from the judgment entered thereon the defendant in due course appeals.

The petition alleges that plaintiff had been in the employ of the defendant company a number of years, and that at the time he met with his injuries his ordinary duties were to operate a molding machine, but that he had occasionally performed other duties in accordance with the direct orders of his foreman; that on the day in question the defendant, "wholly disregarding its duty to furnish him with good and reasonably safe tools and machinery, did furnish him with a joiner, a machine by means of which dressed lumber is beveled, and at which plaintiff was working in accordance with an express order given him by defendant's said foreman, which said joiner defendant negligently and carelessly maintained and furnished plaintiff in a dangerous and defective condition, in that said joiner was not equipped with a safety device or guard to prevent its operator from getting his hands or arms caught in its cutting edges or cogs, although it was defendant's duty to so equip said joiner to prevent injury to its operator." It is further alleged that the defect in said joiner was known to the defendant, or by the exercise of ordinary care on its part would have been known by it, and that the plaintiff, while working at and near the said defective joiner, and while acting under the orders of the defendant's said foreman, and in the scope of his employment, namely, "while plaintiff was preparing to bevel a piece of dressed lumber, plaintiff's left hand was caught in the mechanism of said joiner by reason of the defective condition of said joiner, and the second and third fingers of plaintiff's left hand were cut off between the second and third joints." The petition contains a further assignment of negligence to the effect that defendant neglected and failed to furnish him with a reasonably safe place to work, in that defendant took him from his usual work on the molding machine and carelessly and negligently put him to work at a joiner, and carelessly and negligently furnished him with a dangerous place to work, in that the said joiner was not equipped with a safety device or guard to prevent its operator's hands or arms from coming in contact with its cutting edges or cogs, and that the floor in the immediate vicinity of said joiner was littered with a large quantity of shavings, in which were concealed small and irregular pieces of wood; that said dangerous condition of said floor in the immediate vicinity of the joiner was known to the defendant, or could, by the exercise of ordinary care, have been known to it, but could not be discovered by due caution and care by plaintiff; and that, while acting under the orders of defendant's said foreman, plaintiff stepped into said pile of shavings to insert a piece of dressed lumber in said joiner, and stepped on a small, irregular piece of lumber concealed in said shavings, which caused plaintiff to lose his balance and fall against said joiner, which said carelessness and negligence of the defendant caused him to suffer the aforesaid injuries.

The answer, after generally denying the allegations of the petition, admits the corporate existence of the defendant, and sets up as a special defense that the injuries whereof plaintiff complains in his petition, if any, were the result of the negligence of the plaintiff himself contributing directly thereto, in this, that the plaintiff at the time of said injuries, if any, undertook to operate a machine in a planing mill of the defendant with which he was unfamiliar, while intoxicated, and because of the plaintiff being unfamiliar with said machine undertook to operate the same in an improper manner and without exercising ordinary care for his own safety.

The reply put in issue the new matter pleaded in the answer.

At the trial plaintiff, in his own behalf, testified that he was a woodworking machine hand of about 30 years' experience; that he usually worked on a molding machine, but had worked on a joiner and saw off and on for about 17 years, and was thoroughly familiar with the working thereof; that on the day on which he met with his injuries he had ordered from defendant two pieces of lumber for his own use to go over a screen door, and that he did not want to change the molding machine at which he was then working to finish these said two pieces of lumber; that John M. Darr, Jr., who was accustomed to giving him orders, told him he could finish it on the joiner, because it was not as hard to set it for the work that plaintiff wished to do as was the setting of the molder; that he beveled one piece on two edges and had reversed it to bevel off another edge to make it square; that when he had the piece of lumber about halfway through the joiner his foot hit a little block of wood on the floor among some shavings lying there, and he "sort of fell," which caused the board to turn and his left hand came in contact with the knives in the machine, and before he could get them out two fingers were severed and one was cut. He further testified that joiner machines such as he worked at and was working at on this occasion were usually provided with wooden guards to cover the portion of the knives not being used in cutting, but that...