Humphrey v. Lusk

• Decision Date: 23 June 1917
• Citation: 196 S.W. 53,196 Mo.App. 442
• Parties: GEORGE T. HUMPHREY, Appellant, v. JAMES W. LUSK et al., Receivers, Respondents
• Court: Missouri Court of Appeals

196 S.W. 53

196 Mo.App. 442

GEORGE T. HUMPHREY, Appellant, v. JAMES W. LUSK et al., Receivers, Respondents

Court of Appeals of Missouri, Springfield

June 23, 1917

Appeal from Jasper County Circuit Court.--Hon. J. D. Perkins, Judge.

AFFIRMED.

Judgment affirmed.

Fielding P. Sizer for appellant.

W. F Evans, Mann, Todd & Mann, McReynolds & Halliburton and Gray & Gray for respondent.

STURGIS J. Cox, P. J., and Farrington, J., concur.

OPINION

STURGIS, J.

In this action plaintiff seeks to recover for personal injuries received while in defendant's employ as operator of a machine called "shears" used in cutting iron at defendant's repair shops at Springfield, Missouri. These shears were operated by electricity and the two large blades, or knives, opened and closed at regular intervals in the manner of ordinary shears. They were powerful enough to cut bars or sheets of iron of considerable thickness. The piece of iron to be cut was placed by the operator on the lower blade, which was stationary, and the other descended with sufficient force and power to cut it off. In so doing on this occasion a piece of iron held by plaintiff slipped between the knives and, flying back, caught his finger against a guard mashing the same. The negligence is stated in the petition as follows: "Plaintiff placed the front end of said iron upon the lower blade of said shears, while the upper blade was going up, and before same should descend to cut said iron, and when the upper blade came down in its regular movement it came in contact with the iron so placed as aforesaid, and on account of the defective and dull and blunt condition of said shears, the front end of said iron was suddenly thrown out of the grasp or bite of said shears as they closed upon same, thereby throwing plaintiff's right hand against the guard to said shears with such force and violence that plaintiff's middle finger upon his right hand was mashed and crushed. Plaintiff further states that he had requested those in charge of the sharpening and furnishing of shears for said machinery to sharpen same or furnish plaintiff with blades that were not defective, blunt and dull; and that said foreman in charge of said work employed by the defendants as aforesaid, promised plaintiff that he would furnish same; and relying upon the promises of the defendants, their agents, servants and employees plaintiff continued to work with said machinery, thinking that he could do so by exercising ordinary care on his part; and while doing so, and before said shears were furnished as aforesaid, plaintiff was injured as above set forth, which injuries were directly caused by the negligence of the defendants, their agents, servants and employees, in failing to exercise ordinary care to furnish plaintiff with blades that were reasonably sharp; that the blades which were on said shears were defective, blunt, dull and insecure, and were so beveled that they could not take or catch upon the metal inserted between the blades as aforesaid. That the defendants further were negligent in failing to furnish plaintiff with sharp blades as aforesaid, and were further negligent in promising plaintiff that they would supply such blades and failing to supply same after having promised to do so; that as the direct result of such negligence, acting separately or conjointly, plaintiff was injured as aforesaid." The answer is a general denial and a plea of contributory negligence. The trial resulted in an instruction at the close of plaintiff's evidence directing a verdict for defendants, to avoid which plaintiff took a nonsuit. The court refused to set this aside on plaintiff's motion and he appeals.

The parties do not differ so much as to the law of this case as to the facts and what inference the jury might properly draw from the evidence in plaintiff's favor. If plaintiff made a case for the jury it is solely by his own evidence. He testified that the shears in question had been sharpened some two weeks previous to this accident but by use had become dull and blunt; that this caused same to be dangerous because of the liability of the pieces of iron to slip and fly out under the strong pressure of the knives, and that this actually happened on this occasion, causing his injury.

Plaintiff thereupon invokes the doctrine that it is the duty of the master to furnish his servant reasonably safe tools and appliances with which to work and to keep same in such reasonably safe condition at all times. Plaintiff's evidence showed a violation of this duty resulting in his injury. But does that alone make a case for him? Evidently he thought not, and correctly so, in view of the fact that he was the one who operated this machine and that these knives became dull under and by his use and that he would be and was the one who would first see and observe this condition and know and realize the danger of the longer use of same without sharpening. He testified that there was no way to tell how long a pair of these shears would stay sharp, depending on the extent to which he used them and how well they had been previously sharpened. Plaintiff also knew that as operator of this machine it was his duty, on observing the dull and therefore dangerous condition of these knives, to take some steps to have or cause same to be sharpened, and that a failure to do so and his continued use of same without doing anything to remedy or cause to be remedied this known defect would be negligence on his part. He also knew that the master could not be held for negligence in not repairing this defect unless such master had actual or constructive knowledge of the existence of such defect for a sufficient length of time to remedy same. How was the master to know this unless he took some action?

These additional elements entering into plaintiff's cause of action result from the fact that the master has a right to exact of the servant the intelligent use of his senses in performing his work and that he take proper precautions for his own safety. [Forbes v. Dunnavant, 198 Mo. 193, 209, 95 S.W. 934; Bowen v. Railroad, 95 Mo. 268, 8 S.W. 230.]

While the general rule is that the duty to furnish and keep reasonably safe the tools and appliances used by the servant cannot be delegated by the master to others so as to escape liability, this doctrine is limited by the further rule that the master may properly entrust to the servant the reasonable inspection and seeing to the repair of the tools and appliances used by him; and where plaintiff's injury results in whole or in part from his own negligence in this respect, the master is not liable. Under the facts of this case the duty devolved on plaintiff to observe when the shears became dull and dangerous and to take proper steps to have same sharpened or replaced with sharp shears. [Kelley v. Railroad, 105 Mo.App. 365, 79 S.W. 973; Forbes v. Dunnavant, 198 Mo. 193, 210, 95 S.W. 934; Bradley v. Tea & Coffee Co., 213 Mo. 320, 330, 111 S.W. 919; Rowden v. Mining Co., 136 Mo.App. 376, 117 S.W. 695; Knorpp v. Wagner, 195 Mo. 637, 663, 93 S.W. 961.]

We have said that the plaintiff knew that the proof of the performance of these duties resting on him was essential to his case, and so he alleged, as part of his cause of action that, on seeing that these knives were dull and dangerous, he notified those in authority, and whose duty it would be to have the defect remedied, of the condition thereof; and, to excuse his continued use of the machine in its defective condition, he further alleged that the foreman in charge of the work and representing the master directed him to continue using these shears and that the defect would be remedied; that plaintiff...