Dow Wire Works Co. v. Morgan

Decision Date04 October 1906
Citation96 S.W. 530
PartiesDOW WIRE WORKS CO. v. MORGAN.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

"Not to be officially reported."

Action by E. D. Morgan against the Dow Wire Works Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Forcht & Field, for appellant.

B. H Young and M. W. Ripy, for appellee.

CARROLL C.

The appellee was seriously injured by a ripsaw he was working with in ripping planks into small strips, and brought this action to recover damages for the injury which was caused, as he alleged, by the negligence of the appellant in failing to furnish him safe and sufficient tools to work with and in failing to instruct him as to the danger incident to the employment. From a judgment in his favor the appellant prosecutes this appeal, and asks a reversal chiefly because the court refused to instruct the jury to find for it, and for error in giving and refusing instructions.

At the time of the injury the appellee was about 19 years of age and had been employed as a common laborer at one of appellant's factories. The evidence in his behalf tended to show that he had never had any experience in operating a ripsaw and that the foreman of appellant had knowledge of this fact when he requested the appellee to leave the work he was engaged in and operate the saw, and that he was not instructed as to the use of it, or the danger incident to the employment. Appellee testified that he did not ask or receive any instructions or information as to the work, except that the foreman went with him to the saw, set the gauge, ripped one strip from the plank, and then left; that the accident occurred a few moments after the departure of the foreman, no person except appellee being present at the time, and he did not know what caused the accident, except that when the saw was about two-thirds through the 14-foot plank he was ripping, the plank suddenly jerked or jumped and left the saw, throwing his hand against the saw, which cut off four fingers. The foreman testified that appellee said he had theretofore worked with a circular ripsaw, and that he remained with him some time and saw that he understood how to operate it. Evidence was introduced tending to show that it was usual and proper to instruct inexperienced hands how to operate a ripsaw, and as to the danger incident to the employment, and that it was the usual and safe plan to have the saw equipped with a cover or hood that prevents the hand or person of the operator from coming in contact with the teeth of the saw, and to have a spreader, which is a small wedge-shaped implement, set on the table back of the saw for the purpose of keeping the plank open as it is sawed, thereby preventing it from pinching the saw. The saw appellee was engaged in operating was circular in form, was attached to a table, the top of the saw being about two inches above the table, the plank to be ripped was placed by the operator on the table, and pushed against the saw by the operator, who also held it on the table and against the gauge that regulated the width of the strip to be sawed. This saw was not covered in any way, nor was there any spreader attached to it, and evidence was introduced for the appellant tending to show that neither a spreader nor cover was necessary in sawing the kind of lumber that appellee was sawing.

A peremptory instruction offered by appellant was overruled and upon the conclusion of the evidence its counsel offered several instructions, all of which were refused. Thereupon the court instructed the jury as follows: "If you shall believe from the evidence that there were dangers incident to the operation of the ripsaw, referred to in the evidence in this case, which were unknown to plaintiff and which were known to its foreman, superior to plaintiff in its service and that it was known to defendant's agent or foreman in charge of its establishment, that the plaintiff had no prior experience in the operation of a ripsaw, if such was a fact, and that such dangers incident to the operation of a ripsaw were known to defendant, and that the means of guarding against them were also known to defendant, if there were such means, and its agent, the foreman in charge of its shop, and superior to plaintiff in defendant's service, and were unknown to plaintiff, then it was the duty of the defendant, or of its said foreman, to explain the danger to plaintiff before putting him to work upon the said ripsaw, and to explain to him also the means of guarding against such dangers, if there were any of the kind I have mentioned; and if you shall believe from the evidence that the defendant's agent, or foreman in charge of its shop, and under whose supervision the plaintiff was working, failed to explain the dangers to plaintiff, if there were any, connected with the operation of the saw, and the means of guarding against such dangers, and shall further believe that by reason of the failure of defendant's foreman in this respect the plaintiff sustained the injuries by him alleged, then the law is for the plaintiff and you should so find, unless you shall believe from the evidence that the plaintiff failed to exercise ordinary care for his own safety, and by such failure upon his part, so far contributed to his injuries that but for which he could not have been injured. (2) The court further instructs you that it was the duty of the defendant company to have and maintain the ripsaw, in the evidence referred to, in a condition reasonably safe for use, and to adopt and provide such appliances as have been found by actual test and...

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