[Copyrighted Material Omitted]
Appeal
from St. Charles Circuit Court.--Hon. E. M. Hughes, Judge.
REVERSED
AND REMANDED.
STATEMENT.
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 a 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 20, 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 a 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 the 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
towards 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 the 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 or
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 sheetiron 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 a machine 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
operative. 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 exercise of
ordinary care on the part of defendant in the application of
some practical device or contrivance to protect the operator
from being cut by the saw, and that the defendant knew of
such unsafe condition or might have known thereof by the
exercise of reasonable care and diligence, they are
instructed that the defendant is liable to plaintiff for any
injuries he has received in consequence of such defect in the
make and construction of such apparatus after it was known or
ought to have been known to defendant, even if such defect
was known to the plaintiff; provided, that plaintiff at the
time of his injury was exercising ordinary care and prudence,
and provided further, that such defect in such apparatus was
not so dangerous as to threaten immediate injury to plaintiff
from its use or if plaintiff might reasonably have supposed
that he could work with said apparatus without injury to
himself, by the use of ordinary care and caution.
"The
jury are instructed that it was defendant's duty through
its authorized officers or agents to inspect and keep in
repair the sawing apparatus with which plaintiff was required
to work at the time of his injury; therefore, if the jury
find and believe from the evidence that the saw with which
the plaintiff was engaged sawing boards at the time of his
injury was out of repair, and that said defective condition
of said saw directly caused plaintiff's injury, and that
plaintiff at the time of his injury was exercising ordinary
care and prudence in his work, and that defendant knew, or
might have known, by the exercise of ordinary diligence, the
defective condition of said saw then and in that event the
defendant is liable to plaintiff for any injury caused
plaintiff by the defective condition of the saw, even if
plaintiff at the time of his injury knew of the defective
condition of said saw; provided, that such defective
condition of said saw did not render the same so dangerous as
to threaten immediate injury to plaintiff from its use, or if
plaintiff might reasonably have supposed that he could work
with said saw in its defective condition without injury to
himself by the use of ordinary care and caution."
At the
request of the defendant these instructions were given:
"4.
Neither of the several allegations of fact, upon which
plaintiff bases the charge of negligence against the
defendant is material unless the jury find from the evidence
that such fact caused or directly aided in producing the
injury complained of; and unless you find that the fact
charged...
