Hammack v. Hill
| Citation | 251 S.W. 432,212 Mo.App. 193 |
| Parties | JAMES M. HAMMACK, Respondent, v. ARCHIBALD M. HILL and WILLIAM L. BEHAN, Partners, Doing Business Under the Firm Name of HILLBEHAN LUMBER COMPANY, Appellants |
| Decision Date | 03 April 1923 |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of St. Louis County.--Hon. John W McElhinney, Judge.
AFFIRMED.
Judgment affirmed.
Taylor Chasnoff & Willson and Hugo Monnig for appellants.
The respondent was guilty of contributory negligence as a matter of law and is not entitled to recover from appellants; the judgment should be reversed. Huss v. Heydt Bakery Company, 210 Mo. 44; Stegmann v. Gerber, 146 Mo.App. 104; Doerr v. St. Louis Brewing Ass'n, 176 Mo. 547; Williams v. St. Joseph Company, 214 S.W. 385; Smith v. Forrester-Nace Box Company, 193 Mo. 715; Francis v. Railroad Company, 110 Mo. 387; Kilmer v. Connecticut Zinc Corporation, 227 S.W 861; Biddlecom v. Nelson Grain Company, 178 S.W. 750; Egan v. Trenton Gas & Electric Company, 233 S.W. 239.
Claude M. Crooks and Charles E. Morrow for respondent.
The court did not err in refusing the defendant's instruction in the nature of a demurrer to the evidence. The plaintiff was not guilty of contributory negligence as a matter of law. Wagner v. Gilsonite Const. Co., 220 S.W. 890; Tatum v. Laundry Co., 201 Mo.App. 97; Hughes v. Manufacturng Co., 168 Mo.App. 549; Brashers v. Iron Works, 171 Mo.App. 507; Simpson v. Iron Works Co., 249 Mo. 376; Yates v. House Wrecking Co., 195 S.W. 549.
In this action plaintiff seeks to recover damages for personal injuries sustained by him while in the employ of defendants at their planing mill and factory at 6600 Page Avenue in St. Louis County. The negligence alleged is the failure of defendants to safely and securely guard a circular ripsaw while the same was so placed and being operated as to be dangerous to persons employed therein and thereabout while engaged in their ordinary duties, and that the same could have been safely and securely guarded.
The answer was a general denial, coupled with a plea of contributory negligence.
The reply was a general denial.
At the time plaintiff received his injuries he was operating a circular ripsaw, and was an experienced operator, having been employed and engaged in this character of labor for many years. In the performance of his duties as an employee of the defendant he was required to operate the ripsaw in question, which was fastened to an iron table about four feet wide and four or five feet long. The saw was placed in a slot in the table, and extended above the table a distance estimated by witnesses as being from three inches to four and one-half inches. The diameter of the saw is estimated at from eight to fourteen inches. It was not guarded. It was plaintiff's duty to keep the table clean to avoid the accumulation of materials that would be dropped around the saw while it was in use. At the time plaintiff was injured he was engaged in "pointing" stakes. In size these stakes would be called, in lumber parlance, 2 x 2 and four feet long, that is, each of the four sides of the stake was about two inches wide. The end of this stake would be placed against the saw by plaintiff, and held in such a position that a rectangular piece about three or four inches long would be sawed from each of the four sides thereof, making the stakes pointed so that they may be used, as we understand it, by surveyors. When these small pieces were sawed off they would fall on the table near the saw. When this happened plaintiff would usually reach around the saw and take the pieces of sawed off material out of the way with his hands. There was evidence that the saw could have been guarded without interfering with its operation. Plaintiff had started to work about seven o'clock on the morning he was injured. He oiled the machine and started it in operation, which was done by pressing an electric button or turning on a switch in the building somewhere near where the saw was located. When the saw was in operation and plaintiff was in the usual and ordinary course of his employment he would stand at the end of the table facing this circular saw which revolved toward him. He had only pointed two stakes when he noticed a board about two inches wide, one-half inch thick, and eighteen inches long, lying on the table near this saw. Seeing this board and observing that it was close to the saw, and being desirous of removing it before it became caught by the teeth of the saw and thrown toward him, he reached over the saw from his standing position, and, while attempting to remove the board, his hand was caught and he received injures. It is unnecessary to set out in detail the nature and character of the injuries he received, as no point is made here that he was not injured, or that the verdict is excessive. This saw was operated by electric power. The evidence also discloses that plaintiff could have stopped the saw and removed the board, or could have walked around the table, or might have removed the board with the stick he was holding in his hand, and not have been injured.
The sole question in this case presented for our consideration being the question of whether or not plaintiff should be declared guilty of contributory negligence as a matter of law, we think it best to set out some of the evidence of plaintiff on cross-examination, as it appears from the abstract of the record, as this not only gives the exact language of the witness, but indicates, we think, the meaning and construction to be placed upon his testimony as well as his conduct at the time he was injured:
The evidence on the part of the defendant tended to refute some of plaintiff's...
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