Hearon v. Himmelberger-Harrison Lumber Co.

• Decision Date: 10 August 1920
• Docket Number: No. 2629.,2629.
• Parties: HEARON v. HIMMELBERGER-HARRISON LUMBER CO.
• Court: Missouri Court of Appeals

224 S.W. 67

HEARON v. HIMMELBERGER-HARRISON LUMBER CO.

No. 2629.

Springfield Court of Appeals. Missouri.

August 10, 1920.

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Action by Clyde Hearon, by next friend, against Himmelberger-Harrison Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Oliver & Oliver, of Cape Girardeau, for appellant.

S. J. Smalley, of New Madrid, for respondent.

STURGIS, P. J.

The plaintiff lost three fingers of his right hand by reason of same coming in contact with a rapidly revolving circular saw which plaintiff was operating in defendant's sawmill at Morehouse, Mo. The petition charges that plaintiff's injury was due to defendant's negligence in respect to the defective condition of said saw and the appliances connected therewith, by reason of which said saw unexpectedly and improperly rebounded against plaintiff's hand while he was attempting to adjust a large board for sawing. The defendant denies its negligence, and charges plaintiff with negligence in having his hand in line with the action of the saw. The case was tried by a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

The saw in question was about 18 inches in diameter, and operated partly above and partly below a table on which the boards or timbers to be cut were placed and brought in contact with such saw. It is what is called a cut-off saw, used to cut boards or timbers into required lengths. It operated on a movable frame beneath the table, working backward and forward in a slit in the table on which the board was placed and the saw brought forward against it: This frame was operated by the operator pressing a lever with his foot. When the board was placed so as to cut the proper length, the operator pressed down the lever with his foot, causing the revolving saw to move forward till the board was cut through, and then, by releasing the lever, the saw receded to its normal position, being drawn back by a coil spring.

On the occasion of his injury the plaintiff was using this saw to cut grain door boards 7 feet long out of 16-foot boards. He placed a board on the table, cut one length from same, and was reaching over to draw the board to the proper place to cut same again, when the same unexpectedly, and without his pressing his foot on the lever, bounded forward and caught his hand. This saw, after being drawn forward through the board being cut — that is, toward the operator who stood close to the table — by his pressing down on the lever operating same, was then, on the lever being released, drawn back by means of a spring, and rested at the far side of the table, where it was protected by a guard or hood. There was also a protecting guard or hood in front so as to keep the operator from coming in contact with the saw. The path of the saw in cutting was across the table toward the operator. The board or timber to be cut was fed from the operator's right, and was pushed to the left for each successive cutting. It was intended that the operator should stand to the right of the saw and operate the lever with the left foot, his helper being on the left and removing the pieces cut off. In this position the operator could easily push along the board being cut, and there would be little or no need of his hands coming directly in front of the saw. On this occasion the plaintiff was standing to the left of the saw, operating the lever with his right foot, and in order to move the board to the left into position to be cut again it was necessary for plaintiff to reach across the path of the saw. The plaintiff's standing on the left side of the saw instead of the right side is the basis for defendant's charge of contributory negligence. The plaintiff's reason for so doing is that he was "right footed," and could more easily operate it in that way.

It was the rebounding or sudden coming forward of the saw without plaintiff's pressing on the lever to cause it to do so that caused plaintiff's hand to be cut. The part of plaintiff's petition charging defendant's negligence is as follows:

"Plaintiff further states, charges, and avers that defendant, wholly disregarding his duties in that behalf, negligently and carelessly failed to provide plaintiff with a suitable and properly constructed cut-off saw for sawing grain door and other kinds of boards, and negligently and carelessly failed to provide suitable coil springs to pull said cut-off saw backward from said table and hold said saw in position under said protecting hood while not in use, and negligently and carelessly failed to inspect said saw and coil springs and appliances, and negligently and carelessly permitted said saw to become defective, unsafe, and dangerous, said coil springs to become old, worn and out of adjustment, and said saw and appliances to become in such dangerous condition that said saw would not be held in position and remain under said protecting hood while not in use, but same was liable, by reason of said defective and dangerous condition of said saw and appliances, and the old, worn condition and lack of adjustment of said coil springs, to rebound and endanger the safety of the plaintiff without warning; that said defective condition of said cut-off saw, the old, worn condition and lack of adjustment of said coil springs, and the aptness of said saw to so rebound that plaintiff was likely to be injured or hurt thereby, were all known to defendant, or might, by the exercise of ordinary care on its part, have been known to defendant, but which could not be discovered by due caution and care by plaintiff, and that plaintiff was inexperienced and unaccustomed to said cut-off saw, and did not know of said defective and dangerous condition of said saw, spring, and appliances.

"That on the 1st day of February, 1919, while operating said unsuitable and improperly constructed, defective, and unsafe cut-off saw, and while acting under the orders of defendant and in the scope of plaintiff's said employment in attempting to place a piece of grain door board in proper position on the table to cut off the end thereof, said cut-off saw, by reason of said negligent and improper construction of said saw and appliances, and by reason of the old, worn condition and lack of adjustment of said coil springs, and by reason of the negligence of defendant in failing to provide a suitable and properly constructed cut-off saw, coil springs, and appliances in good repair, and failure of defendant to have said cut-off saw, coil springs, and machinery properly inspected, and by reason of the negligence of the defendant in permitting plaintiff to operate said saw, and negligence in failing to caution and warn him of his danger, said cut-off saw suddenly and without warning, and while plaintiff was in the exercise of due and reasonable care, without any fault or negligence on his part, rebounded and jumped forward from its position under said protecting hood against the right hand of plaintiff, sawing off and severing from plaintiff's said right hand, the first, second, and third fingers, whereby plaintiff has lost his said first three fingers of his right hand, and...