Cole v. North American Lead Company

• Decision Date: 31 March 1908
• Citation: 112 S.W. 753,130 Mo.App. 253
• Parties: COLE, Appellant, v. NORTH AMERICAN LEAD COMPANY, Respondent
• Court: Missouri Court of Appeals

112 S.W. 753

130 Mo.App. 253

COLE, Appellant, v. NORTH AMERICAN LEAD COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

March 31, 1908

Appeal from Madison Circuit Court.--Hon. Chas. A. Killian, Judge.

AFFIRMED AND CERTIFIED TO SUPREME COURT.

B. H Boyer and Jerry B. Burks for appellant.

The court erred in instructing the jury to return a verdict for the defendant: First. Because the testimony shows that the machine or appliance upon which plaintiff received his injuries was a dangerous one and came within the class of machinery required to be guarded, by section 6433, Revised Statutes 1899. Second. Because the evidence shows that the machine was not guarded, but could have been. Millsap v Beggs, 122 Mo.App. 1; Colloit v. American Mfg Co., 71 Mo.App. 163; Lore v. Manufacturing Co., 160 Mo. 608; Blair v. Hiebel, 105 Mo.App. 633; Henderson v. Kansas City, 177 Mo. 482; McGinnis v. Printing Co., 122 Mo.App. 227; Strode v. Columbia Box Co., 101 S.W. 1102; Nair v. National Biscuit Co., 102 Mo.App. 144; R. S. 1899, sec. 6433.

E. D. Anthony and J. F. Lee for respondent.

OPINION

GOODE, J.

This plaintiff lost part of his right hand in consequence of its slipping against the knives of a planing machine in defendant's factory and instituted this action for damages. The machine consisted of a metallic table, with a smooth surface. The table which is about a foot in width, is divided into two sections, the section in front of the knives being adjustable at different heights. Between the two sections were the planing knives. They were set in a metallic cylinder or axle which rotated rapidly. In planing the operator would lower the adjustable table so the surface of the board to be planed would be cut to the proper depth, and would then slide the board against and over the knives, passing it over the stationary end of the table behind the knives. The pedestal on which the table was placed had two openings in the side under the table and near the floor. Shavings would fall into this pedestal and either pass out at the opening or be raked out by the operator. If allowed to remain in the pedestal, they would choke the machine. The shaft or axle on which the knives were fixed was run by a belt leading to a shaft in the floor of the shop, which shaft was in turn connected with a belt running on a countershaft near the ceiling. All the machinery in the room was operated by power transmitted from the engine room by shafting. This plaintiff, in obedience to an order from his foreman, undertook to plane a piece of timber. At the time, the planing machine was idle, but plaintiff adjusted the belting so as to set it in motion. After it had started he stooped to rake some shavings from the pedestal with his left hand, having his right hand not far from the knives at the time. As he raised from his stooping posture, he stepped on a block of wood lying on the floor and covered with shavings. The block turned, throwing plaintiff off his balance and his right hand against the knives of the planer, which lopped off a portion of three of his fingers and his thumb. At the conclusion of the testimony the court directed a verdict for defendant and plaintiff appealed.

A careful study of the pleadings and evidence has satisfied us there is only one question of doubt raised on the appeal; that is, whether or not the planing machine ought to have been guarded in obedience to the statute; which says:

"The belting, shafting, gearing and drums, in all manufacturing, mechanical and other establishments in this State, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments." [R. S. 1899, sec. 6433.]

The petition avers it was possible at all times to securely guard the planing machine and knives and thereby make them safe and asks damages for failure to guard them, and does not count on negligence in not posting notices that the knives were unguarded on the theory that it was impossible to guard them. Other assignments of negligence are contained in the petition, based on the failure of defendant to guard belts, pulleys and other shafting in the room, and on allowing debris and shavings to accumulate on the floor of the room; but we are satisfied no case was made on those facts. Omission to guard other portions of the machinery was not the proximate cause of the accident and the circumstance that some shavings were on the floor was not actionable negligence. Unless the defendant was remiss in omitting to guard the knives of the planer, the case must be classed as an accidental casualty for which the defendant is not responsible. Plaintiff testified the knives could have been guarded without interfering with the use of the planer and undertook to state how this could have been done. It is far from clear to our minds that it could have been, but perhaps the question would be for the jury if the machine falls within the scope of the statute. The...