Isaacs v. Smith

• Decision Date: 13 August 1925
• Docket Number: No. 3704.,3704.
• Citation: 275 S.W. 555
• Parties: ISAACS v. SMITH et al.
• Court: Missouri Court of Appeals

275 S.W. 555

ISAACS v. SMITH et al.

No. 3704.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Rehearing Denied September 16, 1925.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

Action by P. B. Isaacs against A. B. Smith and E. K. Smith, copartners doing business under the firm name of the A. B. Smith Lumber Company. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Ward, Reeves & Oliver, of Caruthersville, for appellants.

Sheppard & Hawkins, of Caruthersville, for respondent.

COX, P. S.

Action for damages for injuries caused by plaintiff being struck by a board while he was operating an edges in a sawmill owned by defendants. Plaintiff recovered, and defendants appealed.

Defendants were copartners operating a sawmill. One of the machines used by them was what is called an edger. This edger had three circular saws which, we infer, were placed evenly and extended above a platform or a smooth surface of some kind, and the boards were placed by the operator in such a position that rollers carried them along, and the saws cut off the edges as the boards moved forward. After the boards had passed entirely through the edger proper and beyond the saws, they and the offal cut off by the saws were removed by persons stationed at that end of the edger. Plaintiff was feeding the lumber into the edger, and one Loren Smith was removing it after it passed through the edger. In order for plaintiff to pick up the boards and feed them into the edger, he was required to turn to one side, and, while picking up a board, his attention would be diverted from the edger so that he would not observe the movements of the saws while so engaged. While his attention was thus diverted a board in some way came in contact with the saws from the rear end or tail of the edger and was carried back by the saws, and one end of it struck and injured plaintiff. This edger was supplied with what is called kick-back dogs, which were placed in front of the saws and would prevent a board while going through the edger from kicking back, but after a board pad passed through, they would swing freely and would not catch a board to prevent it from coming back from the tail of the edger toward the front. These kickback dogs were not in use at the time of this injury, and plaintiff testified that, had they been in use, they could not have prevented the board that struck him from coming back. There were no other guards on the edger except these kick-back dogs unless the rollers between which the boards passed could be designated as guards.

Plaintiff's cause of action is based upon two grounds of negligence: First, the failure of defendants to provide the circular saws used in the edger, which were power driven, with safety guards and kick-back dogs as required by section 6787, Stat. 1919; second, negligence in employing and retaining an incompetent and negligent employee to keep the lumber removed from the tail end of the edger and prevent it from coming in contact with the saws and being carried back toward the front of the edger.

[1, 2] The evidence for plaintiff in this case shows that the board which struck and injured him had passed through the edger, and nothing more was to be done to it by the edger or the plaintiff who was operating the machine. It was ready to be removed by the off-bearer. In some unexplained way, this board came back against the saws or some one of them, and was carried back by the saws and struck plaintiff. There is no evidence in this case to show that in the ordinary use of this edger there is ever any danger or likelihood of the boards that have passed through the edger ever coming back, being caught by the saws and carried back toward the person whose duty it was to feed the boards into the edger. The evidence does tend to show that if the boards are timely removed after they pass through the edger, they cannot come back and be caught and carried back by the saws. The statute sought to be invoked in this case, section 6787, Stat. 1919, provides as follows:

"All power driven circular saws must be provided with safety guards which raise and lower automatically for various thicknesses of material, and must also be provided with a kick-back dog to prevent the board binding on the saw and flying back. Said appliances shall be subject to the approval of the state industrial inspector, his assistants or deputies."

This statute has two requirements: One is that there must be safety guards which raise and lower automatically for various thicknesses of material. This requirement can only apply to material that is brought in contact with the saw, and while that contact shall continue. Its evident purpose is to hold the material in place, and prevent those employed while operating the saw from coming in contact with the saw while handling the material. There could be no reason for requiring a guard that will raise and lower automatically to prevent boards coming back after they had passed through and left the saw, for there is then nothing more to be done to those boards but to carry them away. The saw has done its complete work as to them, and the party who is to remove them cannot be protected by a guard that would raise and lower automatically, nor would he need such protection. The same thing is true of the kick-back dog. As soon as the board passes through the edger and beyond the saw, it will remain at rest until some other force moves it, and neither a safety guard nor kick-back dog is necessary at that time for the protection of either the feeder of the edger or the party who is to remove the lumber from that position. It seems to us that this statute, as applied to the edger used by the plaintiff in this case, goes no further than to require the safety guards and kick-back dogs to be maintained for the purpose of protecting the employees until the board has passed through the edger, but does not apply to boards that have left the edger and are ready to be carried away. The evidence for plaintiff shows that the board which struck him had gone through the edger and had been discharged from it, and thereafter, in some way, came back and came in contact with the saw and finally struck him. That being true, it results that plaintiff did not make a case for the jury under the statute above set out.

[3] The second ground of negligence on which plaintiff sought to recover was the negligence of defendants in employing and retaining an incompetent and negligent person to remove the lumber and offal after it had passed through the edger. The person employed to do that work was young and probably inexperienced in that kind of work, though neither his age nor experience was directly shown. Plaintiff testified that he appeared to be about 15 or 16 years old, and another witness testified that he appeared to be 14 or 15 years old. Suggestion is made in this court that it was negligence per se in defendants' employing a youth under 16 years of age to do the character of work required of this boy by reason of the provisions of section 3527, Stat. 1919, as amended in the Acts of 1921, page 186, § 6. This statute was not pleaded; neither was the age of the youth shown with any degree of certainty, and no instruction to the jury was asked or given submitting that question. For these reasons that question is not before us.

[4] To hold an employer responsible on the ground that he was negligent in the employment and retention of an incompetent or habitually negligent servant, it must be shown: (a) That the servant whose negligence or incompetency caused the injury was habitually negligent or incompetent; (b) that the injury was caused by the same character of negligence of which the evidence shows the servant to have been habitually guilty, or that his incompetency was of the same character shown in the particular case; (c) that the fact of habitual negligence or incompetency of the servant was known, or by the exercise of reasonable care should have been known, by the defendant at the time of his employment, or that such knowledge was or should...