Keller v. St. Louis Butchers' Supply Co.

• Decision Date: 05 March 1921
• Docket Number: No. 22044.,22044.
• Citation: 229 S.W. 173
• Parties: KELLER v. ST. LOUIS BUTCHERS' SUPPLY CO.
• Court: Missouri Supreme Court

229 S.W. 173

KELLER v. ST. LOUIS BUTCHERS' SUPPLY CO.

No. 22044.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Appeal from St. Louis Circuit Court, Franklin Ferriss, Judge.

Action by John J. Keller against the St. Louis Butchers' Supply Company, resulting in involuntary nonsuit, motion to set aside which was overruled, and plaintiff appeals. Order or judgment reversed, and cause remanded.

Arthur Stahl and Earl M. Pirkey, both of St. Louis, for appellant.

Holland Rutledge & Lashly, of St. Louis, for respondent.

GRAVES, J.

This is an action for personal injuries, wherein the plaintiff sought to recover $10,000 for injuries alleged to have been received through negligence upon the part of defendant. Defendant is a manufacturing corporation in the city of St. Louis, and in the operation of its plant had two ripsaws operated by power, and at one of these the plaintiff worked.

It is charged that defendant had failed to guard this ripsaw; that it was a dangerous machine when unguarded; that it could have been guarded without interfering with its effective use and operation. It is then averred that while plaintiff was in the pursuit of his duties to defendant his right hand came in contact with the unguarded saw, and he received the injuries complained of in this action.

The answer was (1) a general denial, and (2) a plea of contributory negligence. Reply was a general denial. The cause was tried before Hon. Franklin Ferriss, as judge, and a jury. Upon the conclusion of all the evidence in the case, the trial court gave a peremptory instruction to the jury to find for the defendant. Thereupon the plaintiff took an involuntary nonsuit, with leave to move to set it aside. The motion to set aside the nonsuit was overruled, and plaintiff has appealed. Naturally the only assignment of error is the alleged error of the trial court in the giving of the peremptory instruction or demurrer to the evidence. Appellant makes three assignments of error, but they are but different ways of putting the single Issue supra.

I. This case turns upon the facts in evidence. For defendant it was contended that there was a guard for the saw upon which plaintiff was working which could have been used if plaintiff had adjusted it to the saw. It appears that these saws were both equipped with this movable guard, and that all the workmen had to do was to swing the guard into place and adjust it. We would gather from the facts that, when the workman had but a little job to do upon the saw, he would not take the time (estimated at an hour to an hour and a half) to swing around this guard and adjust it. The necessity to guard does not appear to be controverted. Even the plaintiff admits that the other machine was equipped with a guard, and the weight of the testimony (both for plaintiff and defendant) tends to show that the machine upon which plaintiff was working had this adjustable guard, but that it was not used by plaintiff at the time. Nor was it usually used by the operators, because of the time required to adjust it to the saw. There is no question that there is ample evidence to show that the guard was not adjusted to the saw upon the date of the injury, nor did plaintiff try to adjust it.

Plaintiff was not unfamiliar with guards upon ripsaws. He had seen them and seen them used. He had used ripsaws in other factories. He had used the other machine in this shop once, and said that the adjustable guard was on the saw at the time. However, he vigorously denied that there was a guard upon the machine upon which he was hurt. Upon cross-examination he finally said:

"Q. Wasn't the guard for this machine, wasn't it at the time you got hurt, in the same position indicated in this picture B? A. I don't know; I didn't see it.

"Q. Would you deny it was there? A. I wouldn't deny it, but I couldn't see it. That seems to be visible there, but I couldn't see none."

Previously by question from his own counsel he had said:

"Q. Yes. Now, was this% saw guarded? No, sir.

"Q. Could that saw have been guarded? A. Yes, sir."

However, on cross-examination he had also said:

"Q. Now, I want to ask you this question: This picture A, at which you have looked, isn't that an exact picture of the saw at which you were working when you got hurt? A. No, sir.

"Q. Wasn't the saw at which you got hurt equipped with the same sort of guard as there was `on the other saw? A. It looks like the table of the same machine I got hurt on, but that guard wasn't on it; I didn't see that guard; didn't know there was one,"

And further on cross-examination he says:

"Q. Now, in this picture B I have just shown you, to the left is a whitish thing marked `MN' in ink, what is that thing? A. That looks like a guard, but I didn't see that.

"Q. It looks like a guard that isn't in position over the saw blade, doesn't it? A. It isn't over the saw blade; I can see that.

"Q. It looks like a guard? A. Yes, sir.

"Q. It looks like the same sort of a guard that is in the other picture, in this photograph A, doesn't it? A. That guard does.

"Q. Yes. A. But that machine didn't look like that when I got hurt on it.

"Q. In photograph A it is over the saw blade, and in photograph B it isn't? A. It wasn't in view at all; I didn't see it."

Excluding the personal testimony of the plaintiff, it was made quite clear that there was a guard upon the machine upon which he was working, but that it had been swung back, and was not over the saw, although it could have been adjusted to the saw. There is evidence that they had tried to adjust it at one time, and after an hour and one-half could not adjust it. To use the language of the witness:

"Q. You don't know anything about it yourself? A. I saw the machinist that works at the factory try to adjust the guard. He worked at it, I suppose, an hour or an hour and a half, and he couldn't get it to operate. * * *

"Q. Did that guard fit? A. No, sir.

"Q. Whom did you see working on it? A. Machinist; his name I did not know.

"Q. Was he a machinist of the shop? A. Yes; as assistant machinist, I should say. "Q. The what? A. The assistant machinist. "Q. How long did he work on it? A. With the guard?

"Q. Yes? A. About an hour and a half.

"Q. Had he succeeded in making it fit? A. No, sir.

"Q. Could you see the saw with the guard on it? A. No, sir."

Again it should be said that, whilst it appears (to my mind certain) that there was a guard upon this machine, it likewise appears that for some reason it had never been used upon or adjusted to the saw. However, plaintiff says there was no guard there at all, and later modifies the statement to the effect that he did not see one. It is clear that, if the guard was there, it could have been seen, had one looked. Such are some of the pertinent facts. As a trial judge, we would have set aside a verdict for plaintiff, had one been returned for him on the present record. This on the theory that such verdict would have been against the weight of the evidence, and on the further theory that the suit was based and tried upon the theory of an absent guard, and not on the theory of a defective guard.

The evidence in the record leads one to believe that plaintiff falsified when he said that there was no guard upon this machine. It was evidently there under the great weight of the evidence, and it was there (if it were in proper condition) for use by the man using the machine. However, its defective condition (if there was such) has not been made an issue. Under this status was there error in withdrawing the case from the jury?

II. Respondent hardly meets the real question when it is urged:

"Where all the substantial testimony in a case supports the position of a defendant, and there is no testimony to sustain the position of plaintiff other than testimony that is vague, indefinite, lacking in...