Kincaid v. Birt

• Decision Date: 07 April 1930
• Docket Number: 28413
• Citation: 29 S.W.2d 97
• Parties: KINCAID v. BIRT
• Court: Missouri Supreme Court

29 S.W.2d 97

KINCAID v. BIRT

No. 28413

Supreme Court of Missouri, Second Division

April 7, 1930

Motion for Rehearing Overruled June 11, 1930.

Gresham & Gresham, of Platte City, and Duvall & Boyd and Miles Elliott, all of St. Joseph, for appellant.

James H. Hull, of Platte City, R. H. Musser, of Plattsburg, and Pross T. Cross & Son, of Lathrop, for respondent.

OPINION

WALKER, J.

This is an action for damages for personal injuries alleged to have been received by the plaintiff while in the employ of the defendant.

The petition alleges that the plaintiff received his injuries while attempting to operate a power-driven circular saw which the refendant had negligently failed to provide with a safety guard for the protection of its employees in operating the same; that due to such failure the plaintiff was deprived of a safe place to perform the work required or him by the defendant, and as a consequence was so injured as to necessitate the amputation of one of the plaintiff's thumbs, for which he asks damages.

The answer, after a general denial, alleges that the defendant contracted with one Huffman for the sawing of certain stakes for the plaintiff on a saw furnished, operated, and controlled by said Huffman, over which said saw and its operation the defendant had no supervision or control; and that if the plaintiff received any injuries in the operation of the same it was without the knowledge of the defendant and that the plaintiff was not, at the time, in the employ or under the authority of the defendant in using or operating said saw, and that whatever injuries plaintiff may have received while operating the same was due to his own voluntary act and was beyond the scope of any duty he owed the defendant and was the result of his own negligent act in assuming, without authority, the risk of injury in attempting to operate said saw.

Upon a trial before a jury there was a finding and verdict for the defendant from which the plaintiff has appealed. The jurisdiction of this court is based on the plaintiff's allegation of damages, which was in the sum of $ 10,000.

I. It is unnecessary to a determination of this case to set forth in detail the testimony. It will be enough to say that from the plaintiff's testimony alone his operation of the saw was not a part of the duties enjoined upon him by the defendant under his employment. Whatever he may have done in that regard was his own voluntary act. It does not appear that the defendant had any knowledge of his so acting, but on the contrary the latter's contract for the ripping of the timber in the making of the stakes was limited to Huffman and the plaintiff's participation in the work was confined, under the duties enjoined upon him by the defendant, to sharpening the stakes after they had been ripped by Huffman. Under this state of the facts the jury did not err in finding for the defendant. The plaintiff's assignment of error is confined to an objection to the legal propriety of instruction No. 5, given by the court at the request of the defendant. It is as follows:

'The court instructs the jury, that if you find and believe from all the evidence in this case, that the plaintiff failed to use such care, as an ordinarily prudent person would have used under like or similar circumstances in sawing the stakes and in the use of the circular saw, mentioned in the evidence, and that by the use of ordinary care, plaintiff could have avoided such injury received at said time, and that such injury resulted from plaintiff's failure, if any, to use such ordinary care and caution in the use of said saw, then plaintiff is not entitled to recover herein, and your verdict must be for the defendant Birt.'

It appears that the giving of this instruction was stressed by the plaintiff in his motion for a new trial. In the overruling of this motion the trial court said: 'The court finds that this instruction (No. 5) given on behalf of the defendant is erroneous but the case was submitted by both parties on the same theory and the error is harmless.'

Instruction No. 5, as its tenor discloses, submitted the issue of plaintiff's negligence to the jury. In defendant's answer he charges, in general terms, that the...