Hammack v. Hill

• Decision Date: 03 April 1923
• Docket Number: No. 17737.,17737.
• Parties: HAMMACK v. HILL et al.
• Court: Missouri Court of Appeals

251 S.W. 432

212 Mo. App. 193

HAMMACK v. HILL et al.

No. 17737.

St. Louis Court of Appeals, Missouri.

April 3, 1923.

Rehearing Denied May 22, 1923.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by James M. Hammack against Archibald M. Hill and William L. Behan, partners, doing business under the firm name of the Hill-Behan Lumber Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Tayler, Chasnoff & Willson and Hugo Monnig, Jr., all of. St. Louis, for appellants. Claude M. Crooks and Charles E. Morrow, both of St. Louis, for respondent.

NIPPER, C.

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 employé of the defender if he was required to operate the ripsaw in question, which was fastened to an iron table about 4 feet wide and 4 or 5 feet long. The saw was placed on a slot in the table, and extended above the table a distance estimated by witnesses as being from 3 inches to 4½ inches. The diameter of the saw is estimated at from 8 to 14 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, 2x2 and 4 feet long; that is, each of the 4 sides of the stake was about 2 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 3 or 4 inches long would be sawed from each of the 4 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 '1 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 one noticed a board about 2 inches wide, one-half inch thick, and 18 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 injuries. 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:

"Q. After the saw was started up and you had sawed two pieces, you tried to take the board off? A. Yes, sir.

"Q. At that time you could have turned off the power of the saw by turning a button, and had the saw stopped, while you were taking the board off? A. Well, if I had walked way back there and hadn't gone to work, every time that there was a piece of board there; and taken it off, what kind of work would I have done?

"Q. Just answer the question `Yes' or `No.' A. I had run back and stopped it, I suppose wouldn't hurt anybody.

"Q. If you had stopped the saw you could have taken the board off without getting hurt? A. Certainly, if I walked, back there. I might have knocked the board off the table—pushed it off the table with one of those sticks that I was working with. I could have done that and my hand would not have gotten within five feet of the saw; that is true enough, but we don't all think of those things; we ain't got a mind a mile long. The saw revolves toward you as you stand there at the south end working, it turns around toward you. The table shakes some; there is some vibration to the table. The saw is liable to pick up a board lying on the table within an eighth of an inch of the north end of the saw, if the shaking of the table makes the board joggle over to where the saw touches it, it would land right in my breast. It would pick the board up and shoot it south so that all the time that the board was lying there so close to the saw it was a dangerous thing. A man who would work there with a board lying so close to the saw would be in danger. Of course, I couldn't tell when the saw would pick that board up, nor I couldn't tell at the time that I was in any danger of getting it. If it picked the board up just as you reached for it, it was liable to carry your hand into the saw—it done it, too. I didn't think of that at the time; I was in a hurry to do my work. I had worked on a saw like that for 10 or 15 years. I knew that a board like that is liable to be caught on a saw and carried into a saw. If I could get the board off...