Coin v. John H. Talge Lounge Co.

• Decision Date: 13 July 1909
• Citation: 121 S.W. 1,222 Mo. 488
• Parties: COIN v. JOHN H. TALGE LOUNGE CO.
• Court: Missouri Supreme Court

121 S.W. 1

222 Mo. 488

COIN v. JOHN H. TALGE LOUNGE CO.

Supreme Court of Missouri, Division No. 2.

July 13, 1909.

1. MASTER AND SERVANT (§§ 101, 102) — INJURIES TO SERVANT — DUTY OF MASTER.

The master is bound to use reasonable care to furnish his servants safe appliances, and keep them in good order and condition.

2. MASTER AND SERVANT (§ 219) — INJURIES TO SERVANT — ASSUMPTION OF RISK.

A servant does not assume the risk of the danger from the use of unsafe machinery, unless the defects are so obvious that a reasonably prudent man would not attempt to use it.

3. MASTER AND SERVANT (§§ 101, 102) — INJURIES TO SERVANT — DUTIES OF MASTER.

A master is not bound to use the newest and best appliances, but he performs his duty when he furnishes machinery and appliances reasonably safe, which means safe according to the usages and habits and ordinary risks of business; the standard of due care being the conduct of the average prudent man.

4. MASTER AND SERVANT (§§ 101, 102) — INJURIES TO SERVANT — DUTY OF MASTER — HAZARDOUS EMPLOYMENT.

The operation of a band saw for the purpose of cutting wood is not an extrahazardous employment, requiring the master to use more than reasonable care and precaution in furnishing safe appliances.

5. NEGLIGENCE (§ 2) — EXISTENCE OF DUTY.

Negligence is a relative term, and, where there is no duty, there can be no actionable negligence.

6. MASTER AND SERVANT (§ 276) — INJURIES TO SERVANT — CAUSE OF INJURY.

Where an injury to a servant may have been caused by either of two things, for only one of which the master is responsible, he cannot be held liable unless it is shown with reasonable certainty that the cause for which he is liable produced the result.

7. MASTER AND SERVANT (§§ 101, 102) — INJURIES TO SERVANT — MASTER'S DUTY — CONTRACT.

The master's obligation to furnish safe appliances for his servants is cast upon him by law, and is not a matter of contract.

8. MASTER AND SERVANT (§ 221) — INJURIES TO SERVANT — SAFETY OF MACHINERY — AGREEMENT OF MASTER.

The rule that, where a master has expressly promised to repair a defect, the servant can recover for an injury from failure to fulfill, does not apply where the master promised to furnish or equip a band saw with gates or guards; there being no defect in the saw or appliances.

9. MASTER AND SERVANT (§ 217) — INJURIES TO SERVANT — ASSUMPTION OF RISK.

If a servant before he enters the service knows, or if he afterward discovers, or by the exercise of ordinary observation or diligence may discover, that the machine or appliances are unsafe, and he continues in the employment without objection, he is deemed to assume the risk.

10. MASTER AND SERVANT (§ 221) — INJURIES TO SERVANT — AGREEMENT.

A promise of a master's superintendent to furnish a guard for machinery which was not defective was without consideration, and did not give rise to any duty not recognized by law.

11. MASTER AND SERVANT (§ 209) — INJURIES TO SERVANT — ASSUMPTION OF RISK.

A servant, having accepted employment to work with a band saw, and having worked with it for three years, could not require his master to make changes by providing new and different appliances; but must be held to have assumed the usual and ordinary dangers in operating such saw.

12. MASTER AND SERVANT (§ 221) — INJURIES TO SERVANT — MACHINERY — PROMISE TO REPAIR.

To render a master liable for failure to repair machinery after promising to do so, the promise must have been the inducing motive which kept the servant at work, and without which he would have quit.

13. MASTER AND SERVANT (§ 129) — INJURIES TO SERVANT — PROXIMATE CAUSE.

Where a band saw fell from the wheels on which it was running to the floor, and the servant operating it might have thrown off the power, but, instead of so doing, he picked up the saw and attempted to throw it from him, and in so doing caused the injury, the coming off of the saw was not the proximate cause of the injury.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Joseph A. Coin against the John H. Talge Lounge Company. From a judgment for plaintiff, defendant appeals. Reversed.

Rusk & Stringfellow, for appellant. Jas. W. Boyd and C. F. Strop, for respondent.

GANTT, P. J.

This is an action for damages from personal injuries received by the plaintiff, who was at the time an employé of the defendant company, which was engaged in the manufacture of lounges and folding beds, and in connection with said manufacture operated or caused to be operated certain band saws for the purpose of cutting the wood according to various designs for said lounges and beds.

In substance, the plaintiff states: That he was an employé of said defendant, and engaged as an operator upon one of said band saws, and that the motive power of said saw was furnished from the central steam plant owned and controlled by defendant. That the saw upon which plaintiff worked was propelled by and upon two wheels, around which wheels the said saw ran. That said saw was intended to and supposed to run around the center of the outside surface of each of said wheels, which were some distance apart. That said machine or appliance was so constructed that, by the adjustment of said wheels, said saw would be held in position, and all of the slack taken therefrom, thereby causing said saw to become a tight band around said wheels. That in order to operate said saw successfully, and with reasonable safety to the employé, it was necessary that the same should be suspended perpendicularly, and it was necessary that said wheels be so adjusted and set that the one was directly over the other and perpendicular therefrom. That, in connection with the upper one of said wheels, there was a set screw, a regulating or adjusting screw which was used for the purpose of expanding said saw, and for the purpose of raising said wheel so as to cause said expansion. That there was also in connection with said wheel an automatic weight or safety appliance which was used and intended to be used, and which had the effect, when in proper working condition, of automatically adjusting the distance between said wheels and keeping all the slack out of said band saw. Plaintiff states that said saw and wheels and set screws and automatic adjusting appliances and all parts of said machinery had become old and worn and unfit for use, so that it was difficult in operating said saw to keep the wheels around which said saw revolves in proper position, and was and had become difficult to keep the slack out of the saw and keep it in position, whereby the tendency of said saw was to run off of said wheels when in actual use for cutting timbers or wood.

Plaintiff states that there is always danger in operating a band saw, constructed after the manner in which this one was, of said saw leaving the wheels around which it runs and slipping therefrom, and the slipping therefrom is always attended by danger to the operator; that the frame upon which said wheels were fastened were improperly and poorly constructed, and the wheels did not have a correct alignment, and that said frame was old, bent, and warped, and that said wheels did not run directly over each other and did not track with each other, which had the effect of causing said saw to leave said wheels and endanger the safety of plaintiff; that defendant knew of this condition of the saw and that said appliances were old and worn and improperly constructed, and that said band or cushion around said upper wheel had become worn and unfit for use, and well knew the tendency of the saw to leave said wheels, and, if it did, the person operating the same would be in danger; that said saw and machinery upon which the same was worked could have easily been provided with a shield or protection which would have in no wise interfered with the successful operation of said saw and would have removed all danger from the operator in charge thereof, even if the saw left the wheels, irrespective of what might have caused the saw to leave the wheels; that such shields were in general use and well known by defendant prior to the time plaintiff received his injuries. Plaintiff states that prior to the happening of the accident he requested the defendant's superintendent, Mr. Eddins, to provide shields and screens for said machinery and said superintendent promised and agreed to so equip said saws and machinery, but failed to do so, and, in reliance upon said promises, plaintiff continued to operate said machine. Plaintiff states that he also called the attention of the superintendent to the condition of the rubber band around said wheel, and to the fact that the condition of said wheel caused by said defective rubber band would likely cause the saw to leave the wheel and endanger plaintiff, and the defendant's superintendent promised and agreed to correct said defect, but failed to do so.

Plaintiff states defendant was guilty of negligence in permitting said wheels to be out of alignment and in using the frame which was improperly constructed and which had become bent and warped, and permitting the adjusting screw and automatic appliances to become out of repair, and in permitting the aforesaid rubber band to become worn, stretched, and out of position and in using the same when it was unfit for use, and in failing to repair the same after promising so to do, and in failing to provide shields and screens in front of said machinery after being requested so to do. Plaintiff states that on the 14th of September, 1905, while he was operating the aforesaid saw and while in the exercise of due care on his part, the aforesaid saw slipped off of the aforesaid wheel and struck plaintiff, and plaintiff became entangled while the same was in motion, and after the same had left the said wheel and thereby said saw cut, maimed, and mangled plaintiff's left arm in such a manner that plaintiff will be a cripple for life, and said arm has become useless and almost...