Hughes v. The D. E. Marshall Contracting and Manufacturing Company

• Citation: 176 S.W. 534,188 Mo.App. 549
• Parties: HUGH HUGHES, Appellant, v. THE D. E. MARSHALL CONTRACTING AND MANUFACTURING COMPANY, Respondent
• Decision Date: 05 April 1915
• Court: Kansas Court of Appeals

176 S.W. 534

188 Mo.App. 549

HUGH HUGHES, Appellant, v. THE D. E. MARSHALL CONTRACTING AND MANUFACTURING COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

April 5, 1915

Appeal from Jackson Circuit Court.--Hon. Frank G. Johnson, Judge.

REVERSED AND REMANDED (with instructions).

Judgment reversed and cause remanded.

David F. Carson and Blackmar & Bundschu for appellant.

The court below sustained defendant's motion for a new trial on the sole and only ground that he should have sustained its motion for an instruction in the nature of a demurrer at the close of plaintiff's evidence and at the close of all the evidence, and this plaintiff claims was error and as the court below gave that as his only reason therefor, we discuss it from that viewpoint only. Simpson v. Iron Works, 249 Mo. 376; Millsap v. Beggs, 122 Mo.App. 1; Wilson v. Board of Education, 63 Mo. 137; Buckley v. Kansas City, 95 Mo.App. 188; Bender v. Railroad, 137 Mo. 240; Railroad v. Kellogg, 94 U.S. 469-467, 24 L.Ed. 256; Gillespie v Railroad, 144 Mo.App. 508; Murrell v. Smith, 152 Mo.App. 95, 117; Holman v. Iron Co., 152 Mo.App 672, 682; Davis v. Mercer Lbr. Co., 73 N.E. 899; McGinnis v. Printing Co., 99 S.W. 4, 122 Mo.App 227; Miniea v. St. Louis Cooperage Co., 157 S.W. 1007, 175 Mo.App. 91; Lore v. Mfg. Co., 160 Mo. 608; Bassett v. City of St. Joseph, 53 Mo. 290; Adams v. Antles, 105 N.E. 931; Blanton v. Dold, 109 Mo. 64; Murphy v. Railroad, 115 Mo. 111; Lepper v. Stettson Post Co., 112 P. 514; Railroad v Clayton, 113 N.W. 1124; Dukette v. Northwestern Woodware Co., 111 P. 1065; Phillips v. Hamilton Brown Shoe Co., 165 . W. 1183; Bair v. Heibel, 77 S.W. 1017, 103 Mo.App. 624; Henderson v. Kansas City, 177 Mo. 477; Breshears v. United Iron Works Co., 157 S.W. 360, 171 Mo.App. 507; Austin v. Bluff City Shoe Co., 176 Mo.App. 546; Price v. Northern Electric Co., 142 P. 91.

Hogsett & Boyle for respondent.

The motion for new trial was properly sustained by the trial court for the reason given, to-wit, the contributory negligence of the plaintiff. Saling v. American Chicle Co., 177 Mo.App. 374; Dressie, Admr., v. Railroad, 145 Mo.App. 163; Hirsch v. Bread Company, 150 Mo.App. 162; Maupin v. Miller, 164 Mo.App. 149; Pohlmann v. American Car Foundry Co., 123 Mo.App. 219; Finuta v. American Mfg. Co., 174 Mo.App. 87; Doerr v. St. Louis Brewing Co., 176 Mo. 547; Smith v. Forrester-Nace Box Co., 193 Mo. 715; 3 Labatt on Master and Servant, page 3484, and cases there cited; German American Lumber Co. v. Hanna 53 So. 516, 30 L.R.A. (N. S.) 882; Bryan v. Hilton Lumber Co., 154 N.C. 485, 70 S.E. 936; Best v. Williamsport Staple Co., 218 Pa. 202, 67 A. 205; Mulholland v. Ideal Mfg. Co., 149 Mich. 126, 112 N.W. 483; Beltz v. American Mill Co., 37 Wash. 399, 79 P. 981; Newport News Pub. Co. v. Beaumeister, 102 Va. 677, 47 S.E. 821; Grace v. Globe Stove & Range Co., 40 Ind.App. 326, 82 N.E. 99; Bean v. Keller Mfg. Co., 107 Minn. 162, 119 N.W. 801; Kennedy v. Merrimock Paving Co., 185 Mass. 442, 70 N.E. 437; Glover v. Scotten, 82 Mich. 369, 46 N.W. 936; Erdman v. Deer River Lumber Co., 182 F. 42 (C. C. A.); Weltmer v. Bishop, 171 Mo. 110, 116; Payne v. Railroad, 136 Mo. 562; Ginley v. Railroad, 104 Mo. 211; Scroggins v. Railroad, 138 Mo.App. 215; Oglesby v. Railroad, 177 Mo. 296; Brosino v. Zinc Co., 149 Mo.App. 187; Speaks v. Railroad, 166 S.W. 864.

OPINION

JOHNSON, J.

This is an action for personal injuries plaintiff received while operating a woodcutting machine in defendant's carpenter shop in Kansas City. His right hand was cut and permanently injured by a rapidly revolving circular saw which was a part of the machine and he alleges that negligence of defendant, his employer, in not properly enclosing the saw and in allowing other parts of the machine to become defective and dangerous was the proximate cause of his injury. The answer is a general denial and pleas of assumed risk and contributory negligence. A verdict was returned for plaintiff but the court granted defendant a new trial on the ground that the proof established contributory negligence as a matter of law and plaintiff appealed.

Defendant manufactured window sashes and frames in its shop, using machinery operated by electricity to cut and prepare the material. Among the machines was the one in controversy which is called a relisher and was used to cut tenons upon and to bore holes in pieces of sash timber. It stood near the west wall of the room, was about three and one-half feet high, and the power was communicated to it by belting which could be shifted from a loose to a tight pulley and vice versa, to start or stop the machine, as required. The belt could be shifted from one wheel to the other by moving a perpendicular hand lever which was at the north or back of the machine, near its west end. Owing to the defective condition of the belting and shifting device, plaintiff says that to keep the belt on the tight pulley where it had to be for the machine to operate, it was necessary to push the end of the lever towards the wall as far as it would go and to hold it in that position by a cord looped over the lever and attached at the other end to the wall. When the operator desired to stop the machine, he slipped the loop off of the lever and pulled it eastward, thereby shifting the belt to the idle wheel and to do this, he had to be at the north side of the machine. The cutting of tenons or relishing was done by the circular saw which was attached to the west end of a horizontal shaft at the top of the machine. At the opposite end of this shaft was a mandril, or socket, for holding the bit in boring holes. Belting connected this shaft with the lower shaft to which the tight pulley was attached and it is claimed by plaintiff that this belting was in a defective condition. Whether tenons were being cut or holes bored, both saw and mandril revolved with the top shaft to which they were attached. In cutting tenons the operator stood at the south or front side of the machine and placed the piece of timber to be cut on a table in front of the saw and then moved it against the saw. This table was twenty-four inches long and six or seven inches wide, and was so constructed that the timber could be securely held in a desired position and applied to the saw so that a tenon of accurate size would be cut. The saw was unguarded at its front arc of ninety degrees, extending from the top to the plane of the serving table. The evidence of plaintiff tends to show that it was practical to enclose the whole of the upper and exposed half of the saw with what is called a full hood, which leaves an open space in front but little larger than the size of the largest sash timber to be inserted, or, to speak in geometric terms, an open arc of not more than thirty degrees. Defendant claims that thus to have enclosed the saw would have interfered with its practical use, since the operator could not have observed and regulated the cutting process, but this is answered with the statement that it was not necessary for the operator to observe the cutting, since adjustments of the timber were made on the serving table which unalterably fixed the manner and extent of the cutting.

There was a guard over the rear upper arc of ninety degrees of the saw's periphery, and this guard consisted of a narrow, flat strip of sheet iron, curved to conform to the curve of the saw. It afforded some protection to the operator while working at the back of the machine but none when he was working in front. In cutting tenons it was not necessary for him to place his hands near the saw since, as stated, the adjustments were made on the serving table. In boring holes the operator stood at the east end of the machine at a table in front of the bit which was inserted in the socket, or mandril, on a horizontal line and was designed to be securely held in the socket by the tightening of a lag screw. It was necessary that the bit be firm and tight in the socket in order that the holes might be bored with accuracy and to prevent the bit from being violently thrown out of place by the force of its rapid revolutions and thereby converted into a dangerous missile.

In filling a rush order defendant directed plaintiff to do some boring and on finding that the bit required would not fit well in the mandril, being too small and not the proper shape, plaintiff was directed to make it fit the best he could and obeyed the order by cutting off a piece from the butt end of the bit and wrapping that end with wire. Then he inserted it in the socket and tightened the holding screw but in the subsequent operation of boring, the screw had a tendency to loosen its hold and cause the bit to become unsteady and insecure. Plaintiff used a long screwdriver for tightening the screw and, after using it, laid it on the table in front of the saw, instead of on the table in front of the bit. Just before his injury he moved around to the back of the machine, which was in motion, intending to stop it and readjust the bit which had become so loose that he feared it might fly out of the socket. He loosely held the bit between the fingers of his left hand to steady it, and then reached over the revolving saw with his right hand to pick up the screwdriver. In some way his sleeve was caught by the teeth of the saw in front of the guard and his hand was pulled down and mutilated by the saw.

Plaintiff was at a place at the back of the machine from which by reaching far over with his right hand he could have slipped the loop from the end of the lever and pulled the lever eastward, thereby stopping the machine, but he states that this would have compelled him to divert his attention from the bit and that his purpose in reaching first for the screwdriver was to enable him to keep his...