Gunn v. Hemphill Lumber Co.

• Decision Date: 28 February 1920
• Docket Number: No. 2519.,2519.
• Citation: 218 S.W. 978
• Parties: GUNN v. HEMPHILL LUMBER CO.
• Court: Missouri Court of Appeals

218 S.W. 978

GUNN v. HEMPHILL LUMBER CO.

No. 2519.

Springfield Court of Appeals. Missouri.

February 28, 1920.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Suit by Harvey Gunn against the Hemphill Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Ely, Pankey & Ely, of Kennett, for appellant.

Hall & Billings, of Kennett, for respondent.

BRADLEY, J.

This is a suit for personal injury. The cause was tried below before the court and a jury, and plaintiff had judgment for $1,500. Unsuccessful in motions for new trial and in arrest, defendant prosecutes this appeal.

Plaintiff, who had been working at the mill for several years, was employed by defendant as block setter in its band mill in Kennett, Mo., and was injured by being struck by the set lever or ratchet lever which was suddenly forced downward or backward. The petition stresses the detail more than the substantial, but both parties agree, as appears from the briefs, that it charges the following acts of negligence: (1) That defendant carelessly, recklessly, and negligently furnished plaintiff with defective tools and machinery, specified as: (a) A worn, defective and second hand carriage; (b) a worn, broken, and defective ratchet wheel, ratchet pawls, and detents; (c) that the cogs and ratchet on said ratchet wheel and dial and pawls and detents were old, worn, broken, and defective. (2) That defendant had negligently permitted the ratchet to be oiled, thereby causing the pawls to slip. (3) That defendant negligently and carelessly directed plaintiff to go to work on said carriage, assuring him that it was a safe place to work. The answer is a general denial, assumption of risk, and contributory negligence. The reply denied generally the new matter in the answer.

Appellant makes many assignments, but these may be grouped thus: (1) That the court erred in refusing defendant's request for a peremptory instruction; (2) that the court erred in giving instruction No. 1 for plaintiff; (3) that the court erred in admitting and excluding evidence; (4) that the court erred in refusing to permit the jury to visit and view the machinery.

1. The mill had two carriages, designated as the north or left carriage, and the south or right carriage. Plaintiff's regular place was on the north carriage; but the day before his injury, according to his evidence, the block setter on the south carriage became sick, and the foreman directed plaintiff to go to the south carriage. Plaintiff says that he did not like to work on the south carriage because it was awkward to him, and so expressed himself at the time to the foreman, and that the foreman told him that it was all right, that everything was all right, and to go on over there, "you are the only man we have got now to work over there," and plaintiff says that he relied on what the foreman said. According to plaintiff's evidence, he had worked on the south carriage only a short time, notwithstanding he had worked about the mill for several years. When the carriage is back where the log is placed upon it, it is within touch of a powerful mechanical device, operated by steam, and called the "nigger." When a log requires adjusting, the nigger is used, and by its use the log is placed in the desired position. The block setter stands on the carriage and manipulates the ratchet and the flag brake. The ratchet consists of a lever, ratchet wheel, and pawls or detents. The pawls are short movable steel or iron bars, and so placed as to prevent backward revolution of the ratchet wheel when the pawls are placed in the cogs of the ratchet wheel. When the log is placed on the carriage and in position to be secured and moved into the saw, it is against the knees of the carriage, and the block setter by manipulating the ratchet moves the log forward as indicated by the signals of the sawyer in order to cut a plank or board the thickness desired. The ratchet plaintiff was operating had what it called the right wheel and the left wheel, and the right pawls and the left pawls; anyway, the right wheel and left wheel are mentioned. The ratchet lever or set lever is so connected with the ratchet wheel that, if the ratchet wheel is revolved backwards, the lever is forced downward. If both pawls are in position, that is, set in the cogs of the ratchet wheel, and the ratchet as a complete machine is not defective, then, no matter how great the blow, within the limits of the nigger's power, against a log on the carriage, the pawls will prevent the ratchet wheel from revolving backward, and thus prevent the lever from being forced downward. If, on the other hand, the ratchet as a machine is defective, and a log is being adjusted by the nigger, and is thrown with great force against the knees, then the right or lower pawls are liable to jar loose from the cogs of the ratchet wheel, and, if such happens, the lever is forced backward or downward. Also, if both the right and left pawls are "out," that is, not in the cogs, when a log is being "busted" by the nigger, there is no pressure upon the knees, and therefore no likelihood of the ratchet wheel being revolved backward. So it would appear that these pawls should be "in" or "out," when a log is being "busted."

To give plaintiff's version in the most favorable light, it would appear that he was standing on the left side of the ratchet lever and had hold of it, with both the right and left pawls in, and was watching the sawyer adjust a large swell butted log with the nigger. A violent blow from the nigger drove the log suddenly and violently against the knees of the carriage, and this force so jarred the whole carriage, including the whole mechanism of the ratchet, that the pawls were shaken "out," and the ratchet wheel was driven suddenly backward, and the lever downward, and struck plaintiff, resulting in the injuries for which he sues.

Plaintiff testified: That the left ratchet wheel "was worn and old. When you would set out an inch, sometimes one of them pawls would work, and the other wouldn't catch and put out a half inch. It kept those pawls from holding. If this left wheel had been in good shape, those pawls would have held and you could have thrown a lock on the food and it wouldn't have come back." That if both pawls are up when a log is thrown on the carriage, there is no pressure on the lever, but if they are both down, and the log hits, and they come up, then the lever will come back. That when he was injured the pawls were down or in, and he was standing on the carriage, and had hold of the lever, and the sawyer was hitting the log with the nigger, trying to turn it over, and that the log was driven with such force against the knees of the carriage that the pawls were jarred loose, and the lever thrown downward or backward and struck him. He testified that he had not touched the pawls in any attempt to raise them himself, and that the ratchet was worn, and that the pawls had been broken, but had been fixed. He also testified that the mill was secondhand, old, and worn out.

"Q. I am asking you to tell the jury if the ratchet and ratchet pawls had been in good condition and reasonably safe and sufficient, and the log that was being loaded onto the carriage had been busted with the nigger, whether or not those pawls would have flew up and released the lever. A. If there had been a good ratchet and the log would come on, makes no difference how big, they wouldn't have come up, no."

Eli Davis, a witness for plaintiff, testified that he was familiar with this log carriage, had worked on it, and had used the same lever; that sometimes the set lever would slip on the ratchet wheel, and at times the pawls could be raised up when a log was turned over and hit against the knees very hard, and that would cause the lever to "fly back" if just one pawl was raised up.

Another witness, Clel Esters, for plaintiff, who was familiar with the log carriage, and had worked on it, and had used this same lever, testified in effect that with the pawls in proper position the nigger sometimes hit so hard that it would cause the pawls to jar loose.

Defendant's foreman, as a witness for defendant, described the ratchet, pawls, etc., as follows:

"Well, there are two connections, got to be with two sets of pawls. These pawls push this wheel around and around, and that's what pushes the block out, and what is called the bottom pawl—the bottom connection. If you get the pawls up any time you have pressure on the knees, that is, pressure on the log with this nigger—if you get this right-hand pawl up, that causes the lever to fly back with whatever force is against the knees. You can raise the other pawls when the lever is over where it stays and push on it all you want to with the nigger, and it can't fly back; but you raise this right-hand pawl, or the one that's connected underneath, and that don't leave anything to hold the ratchet wheel, only the one pawl on top, and it holds there, but the lever has to go clear back until it hits something before it holds. If you get both pawls up, the blocks will run back and the lever will stand there. If the blocks are down, you can't drive this lever loose from it, by the nigger or any other."

This witness was asked this question:

"Q. Mr. Witness, if there was a man setting blocks, and the head sawyer should motion him to move his blocks so that the log could be pushed back, and he didn't move his pawls, I will ask you to state whether or not in your opinion they could move out. A. No, they can't. Q. Can't come out? A. Not unless he raised up one of those little fingers. Q. I will ask you to state from your experience, state with your experience the only way that pressure could be forced on that lever to force it back with reference to the pawls? A. Well, you couldn't force the lever back at all unless you raised one pawl, the right-hand pawl. You couldn't force it back, because the pawls are there for...