Henderson v. Heman Const. Co.

• Decision Date: 08 January 1918
• Docket Number: No. 14932.,14932.
• Parties: HENDERSON v. HEMAN CONST. CO.
• Court: Missouri Court of Appeals

199 S.W. 1045

198 Mo. App. 423

HENDERSON v. HEMAN CONST. CO.

No. 14932.

St. Louis Court of Appeals. Missouri.

Argued and Submitted December 3, 1917.

Opinion Filed January 8, 1918.

Rehearing Denied January 23, 1918.

Appeal from St. Louis Circuit Court, Leo S. Rassieur, Judge.

Action by Gordon P. Henderson against the Heman Construction Company for personal injury. Verdict for plaintiff, and new trial denied, and defendant appeals. Affirmed.

Rodgers & Koerner, of St. Louis, for appellant. G. A. Orth, Joseph A. Wright, and Watts, Gentry & Lee, all of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff, then a young man about 20 years of age, attaining his majority December 24th, 1914, was a student in the agricultural department of the State University located at Columbia, Missouri, specializing in the marketing of rural products. In the summer of 1914, and during the vacation of the college, he went to work with defendant, engaged in constructing a concrete viaduct at the intersection of Jefferson and Chouteau Avenues, in the city of St. Louis, across the tracks of several railways. He was put to work assisting in the sawing of lumber, that being done by a circular or rip saw. Plaintiff's particular work at first was to put the lumber on rollers that ran up to the saw and take it off after the saw had passed through it. He had had no previous experience in this work and after doing this work for two weeks under the direction of a foreman, was put to running the saw by the carpenter foreman of defendant. Before putting him at this work the foreman asked him if he knew how to run the saw. Plaintiff said, "Yes." Whereupon the foreman told him that he was to run it. Defendant, in connection with its work of constructing the viaduct, was engaged in sawing lumber of all kinds, ripping pieces, sawing wedges, and the like. The saw was set on a table, a frame with an iron top and a slit in it for the saw to run in. There was a motor supplying the power and a belt connected with a shaft, which ran underneath the table, the saw being on a shaft running through a slit in the table. The platform of this table was about waist high, about 5 feet long and 3 feet wide. The saw being operated at the time was a 14-inch saw and was set lengthwise of the table. Over the saw was an iron hood, about an inch wide, set over the top, and a thin "splitter," as it is called, which was a piece of steel the thickness of the saw and let down into the groove made by the saw as it cut through the board. The end of the guard or hood over the top of the saw was about 5¼ inches from the top of the table at the end towards the operator, said the plaintiff, this hood remaining in the same position while the saw was moving, but it could be raised or lowered upon occasion when it was necessary to put in a larger saw or thicker board. It was held in place by means of a thumbscrew set under the table, and could be raised or lowered above the top of the table. The accident to plaintiff occurred about half past 9 o'clock on the morning of August 13th, 1914. Plaintiff was sawing wedges out of a yellow pine board about 18 inches long which another employé had brought him. The board had been marked off for three wedges and he was sawing them out. These wedges were to be used in bracing a gravel bin of the defendant. Plaintiff had sawed out one of the wedges and started to saw out another. The board was resting on the table through which the saw ran, and plaintiff was pushing it in towards the saw with his left hand and holding it down with his right hand. He had sawed half way the length of this second wedge when the board split or the saw struck a rotten place and jumped, jerking his hand into the saw and cutting his thumb and first finger so that it was necessary to amputate them down to the first joints, the saw having cut through the first and second joints and the ends hanging by flesh or skin. The wound did not heal until the middle of October. Since the accident the fingers of the hand are very sensitive and if plaintiff happens to strike them against anything it is very painful. While working for defendant plaintiff received $2 a day. After being injured he went home and then to a hospital and did not work any more that summer; was at the hospital 5 days.

The defendant had hoisting engines and concrete mixers in the vicinity of the saw at the time of this accident and an office building, these being used in carrying on the work of constructing the viaduct. There was no machinery in the office and neither the saw nor any of the other appliances were in any building or enclosure. The saw by which plaintiff was injured was out in the open — no roof over it. It was what is called a portable saw; could be moved and was moved from place to place as the work required, and no building or enclosure over the machinery except that there was a roof over a hoisting machine — a temporary shelter. One of the concrete mixers was moved as occasion required. All the machinery was there temporarily and for the purpose of doing that particular work and then moved away.

On cross-examination plaintiff said that he worked for defendant from July 16th until the 1st of August and had seen the operation of this saw every day; saw how lumber was put through there; knew that the guard over the saw could be lowered or raised by using the thumbscrew on the under side of the table, and knew that the slot was there for the purpose of raising and lowering that guard; sometimes used the 12-inch saw and sometimes a 14-inch, replacing one for the other as occasion required, and when doing that, raising or lowering the guard; had seen this done but had never done it himself. The purpose of moving the splitter was for so adjusting it as to try and cover the front of the saw so that the teeth of the saw would not cut on the inside of the guard and get hot. He understood the operation of the machinery about the saw and understood how to start and stop the saw and had never made any complaint about the guard. On the occasion of the accident plaintiff pushed with his right hand and held the board down with his left, he repeated. This was to bring the board in contact with the teeth of the saw, holding the board on the table with his left hand, holding it down to keep it from flying off of the table or from vibration, and he repeated that on the occasion of the accident he was holding the board down with his right hand and pushing with his left; that he was pushing the board and it was half way through when the board jumped forward; had his thumb on the west end of the board, pushing on that end; his index finger next to it. (It appears that there was a model or diagram identified as showing the board as marked and as being sawed, which was before the jury for their inspection, and plaintiff testified, illustrating from that diagram or model. Photographs were also used at the trial.) When the board jumped the distance between the little finger of his left hand and the saw, plaintiff thought, was 8 or 10 inches. His thumb and index finger were closer. No other parts of his hand, except his thumb and first finger, were hurt.

A witness for the plaintiff, who was a deputy state factory inspector, shown photographs of the saw, was asked if there was in use and on the market any sort of safety appliance in the way of a guard that could have been put over that table so as to guard the saw without interfering with the work and so as to cover the entire surface of the saw and protect the hand of the operator. This was objected to by counsel for defendant and the objection overruled, exception saved and witness answered that there was, and described the kind of guards that were in use for that purpose and had been extensively advertised and were generally known. These guards are made so that they will fit over the saw, are made of steel and witness described them. They can be used on a portable saw, such as the one in question, and he testified that they can be readily adjusted so as not to interfere with the work of the saw. (It was not claimed that any such guards were in use on the saw, the only guard claim being the hood we have referred to.)

On cross-examination counsel for defendant asked this witness why he had not gone to the place where defendant was operating and make an inspection. This was objected to and the objection sustained.

This was practically the testimony for plaintiff.

Averring the fact of the injury, the petition charges that the saw as placed and in operation was dangerous to plaintiff and that it was possible for defendant to have safely and securely guarded it, and that the failure of the defendant company to install and maintain a proper guard for the saw was in direct contravention of the provisions of section 7828, Revised Statutes 1909, setting out that section, and that while he was operating the saw his left hand was thrust into and upon the same and came in contact with it and the thumb and index finger so cut, mangled and mutilated as to necessitate their amputation, and that plaintiff's hand was thrust into and came in contact with the...