Buchanan v. Lewis A. Hicks Co.

• Decision Date: 29 July 1913
• Citation: 66 Or. 503,133 P. 780
• Parties: BUCHANAN v. LEWIS A. HICKS CO.
• Court: Oregon Supreme Court

133 P. 780

66 Or. 503

BUCHANAN v. LEWIS A. HICKS CO.

Supreme Court of Oregon

July 29, 1913

Department 1.

Appeal from Circuit Court, Multnomah County; Robt. G. Morrow, Judge.

Action by Ernest E. Buchanan against Lewis A. Hicks Co. From a judgment in favor of the plaintiff, defendant appeals. Affirmed.

This is an action by Ernest E. Buchanan against the Lewis A. Hicks Company, a corporation, to recover damages for a personal injury. The complaint charges that the defendant was negligent in failing to place a guard upon a circular ripsaw that was operated by electric power, whereby the plaintiff's left thumb was cut and hurt to his damage in the sum of $4,000. The answer denies the material averments of the complaint, and for separate defenses alleges that the mechanism of the saw was such that it could not be operated with a guard, that the plaintiff was an experienced workman who knew and appreciated the danger to which he was exposed and assumed the risk incident thereto, and that the hurt of which he complains resulted from his contributory negligence. A reply having put in issue the allegations of new matter in the answer, the cause was tried, resulting in a verdict and judgment in plaintiff's favor for $1,500, and the defendant appeals.

Eugene Brookings, of Portland, for appellant.

Harry Yanckwich, of Portland (H.J. Parkinson and John A. Jeffrey both of Portland, on the brief), for respondent.

MOORE J. (after stating the facts as above).

It is contended that errors were committed in refusing to grant a judgment of nonsuit, and in declining to instruct the jury to find a verdict for the defendant when the cause was finally submitted. The testimony shows that the plaintiff is a carpenter 27 years old, and had worked at his trade 12 years. He had been employed by the defendant about 2 1/2 months prior to January 3, 1912, on which day, by direction of the defendant's superintendent, he commenced operating a circular ripsaw, but before that time he had never had any experience in that line of work. The saw frame and table were adapted to a combination of instruments by changing which wood could be cut with the grain or across it. The saw designated for the kind of work desired was fastened to a mandrel that was so attached to the frame that the operator, by placing his foot on a lever, brought the edge of the saw above the surface of the table, along which he pushed with his hands the material to be cut. The plaintiff on January 4, 1912, attempting with the ripsaw to split a block 2 inches in thickness, 4 in width, and 9 in length, so as to form wedges, his left thumb came in contact with the circular cutting instrument, and a piece of flesh was sliced from that digit.

It is the duty of a master to exercise care in furnishing a reasonably safe instrument with which a servant may perform the work demanded of him. In Geldard v. Marshall, 43 Or. 438, 444, 73 P. 330, 331, Mr.

Justice Bean, in discussing the carelessness of the employer to the person engaged to render personal services, says: "There may be, and are, cases in which the master's negligence is clearly inferable, although there is no positive proof thereof. The rule is that if two inferences may be legitimately drawn from the facts in evidence, one favorable and the other unfavorable to the defendant, a question is presented which calls for the opinion of the jury."

In the case at bar the testimony in chief of the defendant's witnesses is to the effect that the saw causing the injury could not have been operated without a guard. E.E. Kain, the defendant's superintendent, on cross-examination, however, said upon oath: "I always...