Dean v. St. Louis Woodenware Works

• Citation: 80 S.W. 292,106 Mo. App. 167
• Parties: DEAN v. ST. LOUIS WOODENWARE WORKS.
• Decision Date: 29 March 1904
• Court: Court of Appeal of Missouri (US)

80 S.W. 292

106 Mo. App. 167

DEAN v. ST. LOUIS WOODENWARE WORKS.

St. Louis Court of Appeals. Missouri.

March 29, 1904.

MASTER AND SERVANT—INJURIES TO SERVANT— DEFECTIVE APPLIANCES—REASONABLE SAFETY —USAGE—ASSUMPTION OF RISK—CONTRIBUTORY NEGLIGENCE—QUESTIONS FOR JURY— EVIDENCE—INSTRUCTIONS.

1. Where, in an action for injuries to a servant, the evidence of experts, all equally qualified to testify, as to whether the machine by which plaintiff was injured was reasonably safe, was sharply conflicting, such question was properly submitted to the jury.

2. After plaintiff was employed to work in a woodenware factory, he was ordered to work at a saw which was defective, and while so engaged a board was hurled from the saw, striking him in the stomach, causing him to thrust his left hand along the smooth surface of the table until it came in contact with the saw. Held that, in the absence of proof that the danger to plaintiff of being injured in that manner was obvious and known to him, whether he assumed the risk was for the jury.

3. Where, after plaintiff had been instructed as to the proper manner of sawing boards, for which he was employed, by the foreman of a factory, plaintiff was put in charge of a co-employé, who directed him to do his work in a different manner, and if plaintiff had not so changed his method of work, he would not subsequently have been injured by an alleged defect in the machine, whether plaintiff was guilty of contributory negligence in doing so was for the jury.

4. In an action for injuries to a servant by a saw in a factory, the petition charged negligence in failing to provide a hood, feed roll, or spreader, in order to make the saw reasonably safe, and also that the saw was defective. At the trial the proof showed that any one of these appliances would have rendered the saw reasonably safe, and plaintiff admitted that a spreader had been provided, but claimed that it had worn so thin it was ineffective, which was denied. Plaintiff also testified that the defects in the saw itself did not cause the injury. Held, that plaintiff was only entitled to recover in case the spreader was insufficient, and hence it was error to submit the question whether the saw was unsafe in its make or construction, or whether it lacked any of the safety appliances alleged to be necessary.

5. Where, in an action for injuries to an operator of a saw in a factory, plaintiff's case depended on whether a spreader furnished to prevent material being thrown back was out of repair and ineffective, whether the machine was reasonably safe by reason of the fact that similar machines were in general use throughout the country was immaterial.

Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.

Action by Charles H. Dean against the St. Louis Woodenware Works. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Kehr & Tittman, for appellant. Rassieur & Buder and John V. Noell, for respondent.

Statement.

GOODE, J.

Three fingers of plaintiff's left hand were cut off, and the fourth disabled, by a ripsaw in defendant's factory, which he was operating, and this action was brought to recover the damages incident to the injury. Plaintiff obtained a verdict, and defendant appealed.

The saw which inflicted the injury was a small one, revolving on a mandrel under the top of the table, but protruding above the top through a slot. The defendant company manufactured woodenware—principally washboards —and this saw was used to cut the legs of washboards from cottonwood lumber. Dean was employed July 27, 1901, and hurt August 20th, less than a month afterwards. He had previously worked in factories and with saws. No one testified concerning the facts of the accident except himself. His account is that while he was sawing a board into washboard legs, holding his left hand on top of the board and pushing with his right, it was suddenly hurled from the saw, and struck him in the stomach, causing him to pitch forward and thrust his left hand along the slick surface of the table until it came in contact with the saw.

The allegations of the petition with regard to the negligence of the defendant are as follows: "Plaintiff further states that defendant did place him to work upon a machine or table with revolving saw, then known to the defendant to be, and which by the exercise of ordinary care might have discovered it to be, in a very poor, unsafe, and dangerous condition, in this: that said machine had no feed roll nor other appliance or apparatus by which the lumber being cut by said saw could be held down upon said table, so as to prevent said lumber from being thrown back by said saw with violence to and against the person operating the same, and had no hood nor other appliance to prevent the hand of the person operating the same from coming in contact with and being injured by the said saw, and had no splitter nor other appliance at the rear of said saw to prevent said saw from becoming fastened and clamped in the lumber being sawed thereat, and throwing said lumber with great violence to and against the person operating said machine; and that the saw of said machine was broken and out of repair and was defective, in this: that one of the teeth of said saw was broken off and absent therefrom, and that the remaining teeth of said saw were not properly set for the work to be done thereon, in this: that said remaining teeth were not deflected from the body of the saw, but had been permitted by defendant to become and remain straightened and even with the body of the saw, rendering the operation of said machine very unsafe and dangerous —which condition of said saw was known to the defendant, or by the exercise of ordinary care might have been discovered by it. Plaintiff alleges that some appliance or apparatus such as a hood, which would prevent the hand of the person operating said machine from coming in contact with said saw, or some appliance such as a feed roll, which would hold down the lumber being sawed upon said machine, and prevent such lumber from being thrown back to the person operating said machine, or some appliance or apparatus such as a splitter at the rear of said saw, which would prevent said saw from being clamped by the lumber being sawed upon said machine, was indispensably necessary to the reasonably safe condition of said machine; that said machine had neither of said appliances, and that, in consequence thereof, was a very unsafe and dangerous machine; that defendant, at and before the time of plaintiff's injury hereinafter alleged, knew, or by the exercise of ordinary care might have known, that said machine had neither of said appliances, and that defendant then and there knew, or by the exercise of ordinary care might have known, that said machine, without one of said appliances, was a very unsafe and dangerous machine; that defendant also, wholly neglecting and disregarding its duty toward plaintiff, provided him with moist and damp lumber, and required him to saw the same into strips or pieces of certain sizes at and upon said machine; that said lumber, by reason of its said moist and damp condition, was not adapted to nor fit for the work in which plaintiff was then engaged, and added great danger to the performance of said work, in this: that the said moist and damp condition of said lumber caused it to more readily clamp and fasten itself to said saw, thereby causing said saw to throw said lumber back to and against the person operating said machine."

An analysis of those statements discloses that the specific complaints preferred are these: The sawing apparatus was not reasonably safe, because it had neither a feed roll, hood, nor spreader, one of which attachments is necessary to make the operation of such machinery ordinarily or reasonably safe. A tooth of the saw was broken, and the rest badly set. The boards plaintiff was required to saw were damp, which enhanced the danger. The attachments mentioned in the petition as necessary to the safety of a ripsaw need to be defined, and from the evidence we gather that a hood is a tin or sheet-iron cap partly covering a saw, and preventing the board from flying up while the saw is cutting it and striking the operative. A feed roll or automatic feeder is a toothed appliance something like a saw, but working in front of the saw proper, and feeding the board to it automatically. It, too, tends to prevent the board from being thrown against the sawyer, by the hold its teeth take. At least, there was evidence that way, though there was some to the contrary. A splitter, spreader, or divider —the appliance is spoken of by all three designations—is a piece of iron or steel slightly thicker than, and set about two inches behind, the saw it is to be used with, so as to spread the seam in the wood, and thereby hinder the clamping of the saw. There was testimony that a spreader increased the safety of such machinery, by preventing the saw from struggling with the wood and hurling it against the sawyer. Witnesses testified as to other devices which are used to hinder the wood from being thrown forward—an occurrence which is quite dangerous to the operator. Several witnesses swore the saw in question was of improper construction and very dangerous, and that one of the devices mentioned was necessary to render it reasonably safe and in conformity with the way such machines are usually equipped. A spreader or divider was used in connection with the saw; but there was testimony that it had worn thinner than the saw itself, and therefore did not hold the seam open. There was other testimony that it was in good order and effective.

At the plaintiff's instance, the court, besides other instructions, gave these:

"If the jury find from the evidence in this cause that the apparatus used for sawing boards, by which plaintiff was injured, from its make and construction, was unsafe, and that it could have been made reasonably safe by the...