Kneale v. Dukate

• Decision Date: 15 June 1908
• Docket Number: 13,369
• Citation: 46 So. 715,93 Miss. 201
• Court: Mississippi Supreme Court
• Parties: THOMAS KNEALE v. LOPEZ DUKATE ET AL

46 So. 715

93 Miss. 201

THOMAS KNEALE v. LOPEZ DUKATE ET AL

No. 13,369

Supreme Court of Mississippi

June 15, 1908

FROM the circuit court of Harrison county, HON. WILLIAM H. HARDY Judge.

Kneale appellant, was plaintiff in the court below; Dukate and others, appellees, partners doing business under the copartnership name, Lopez & Dukate, were defendants there. From a judgment in defendants' favor the plaintiff appealed to the supreme court.

The suit was for damages resulting from injuries sustained by plaintiff while employed in defendants' factory. The plaintiff was a ship carpenter in the employ of defendants who operated a canning factory, and built boats for their own use. On the day of the accident the plaintiff had been ordered by the superintendent of the factory to repair the floor of the building and in order to size a piece of timber to be placed in the floor he used a circular saw of defendants' which was ordinarily used in the ship repairing department. Near the circular saw was a band saw and between the two saws a large amount of shavings and trash had accumulated; part of it being very near the belts which furnished motive power for the saw. After plaintiff had sized the timber, he was passing around the circular saw, when a stick caught in the belt which ran the circular saw, was picked up, and hurled against him causing him to fall against the circular saw and lose the thumb and forefinger of his right hand. According to the testimony it was not plaintiff's duty to remove the accumulation of trash from around the saws, and the foreman of the ship carpenters Covacevich, had called the attention of Lopez, the general superintendent and one of the owners of the factory, to the accumulation of trash, and asked that it be removed; most of the rubbish had been thrown from the band saw, generally operated by Covacevich, near the belt which ran the circular saw; but the proof failed to show who threw the strip, which struck plaintiff into the trash pile. Plaintiff testifies that he saw the accumulation of rubbish near the circular saw, but did not know it was dangerous; and Covacevich testified that he would not allow his men to work there until the rubbish had been cleared away, though neither he nor plaintiff had authority to remove it.

The case went to a jury on instructions from the court, and the jury returned a verdict, for defendants. Among other instructions, the court gave the following:

"No 3. The court instructs the jury in behalf of defendants, if they find from the evidence that the strip of wood which struck the plaintiff had been thrown upon the floor on the day preceding the accident, by the foreman, Covacevich, and that no notice that the saw had been rendered dangerous, by means of such strip of wood and other debris having accumulated around the belt had been given to the defendants before the accident occurred, then the jury should find a verdict for the defendant."

Judgment reversed and cause remanded.

J. H. Mize, for appellant.

Appellant's injuries were not the result of the negligence of a fellow servant, and this is not a case where the strip, of wood which was hurled against appellant's face, causing him to fall on the saw and receive the injuries complained of, came from the saw he was operating. As a general rule, where a man is operating a saw and is injured by a piece of wood thrown from it at the time of the injury in the natural course, of its operation, the injury is held to be one of the incidents attending the operation of the saw, the risk of which he assumes when he undertakes such work; but the negligence complained of here is the negligence of the master in not furnishing a reasonably safe place in which the servant may do the work required of him. In this particular case, the negligence of the master was his failure to remove, or cause to be removed, the strips, debris, and other rubbish which had accumulated from time to time in the passage way through which appellant had to go in pursuance of his work, from the operation of the circular saw and the band saw.

To remove this debris and rubbish was not within the scope of appellant's employment, and his foreman, Covacevich, had been expressly ordered not to do it or have it dose.

The throwing of this debris by the circular and band saws and its falling in the passage way between said saws was not negligence on the part of the servants operating saud saws nor on the part of the master; it was simply the natural consequence of the operation of the saws. The negligence consisted in this: that the master did not himself remove this debris after it had fallen in the passage way, and did not permit the ship carpenters to remove it, and did not furnish any other servants to remove it, but allowed it to accumulate in said passage way near and up against the belt and became a menace to the safety of workmen operating said saw.

That the master had knowledge that this accumulation of rubbish in the passage way was dangerous, or should have had such knowledge by reasonable inspection of the premises, there is no doubt, because the foreman, Covacevich, had expressly warned the master of the condition of said passage way and asked to be allowed to clear the debris away, this being about a month before the accident occurred, and the master had instructed its foreman not to clear it away; that he would have it done by some one else. This is dearly shown by the record and not denied. Nelson v. Shaw, 5 Am. Neg. Rep. 743; Swift v. Hollubeck, 9 Am. Neg. Rep. 87; Harder v. Smidt, 9 Am. Neg. Rep. 227; Cavanagh v. O'Neal, 4 Am. Neg. Rep. 527; Atchison, etc., R. Co. v. Stanley, 18 Am. Neg. Rep. 416; Dymond v. Planet, etc., Co., 97 A.D. 43; Mundhenke v. Oregon, etc., Co., 81 P. 977; Bredeson v. Smith Lumber Co., 91 Minn. 317; Busch v. Robinson, 81 P. 237; Sukinger v. Phillibert Mfg. Co., 31 S.W. 957; Virginia Bridge Co. v. Jordan, 5 Am. & Eng. Anno. Cases, 711, 39 S.E. 900; Bowden v. Kansas City, 1 Am. & Eng. Anno. cases.

Instruction No. 3 for defendant is erroneous because there is no evidence in the record which would warrant the jury in finding that the particular strip which was the cause of plaintiff's injury was thrown on the floor the day preceding the accident by the operation of the saw by Covacevich, and it is...