Manker v. Standard Oil Co.

• Citation: 221 S.W. 139,203 Mo. App. 404
• Decision Date: 16 February 1920
• Docket Number: No. 13480.,13480.
• Parties: HANKER v. STANDARD OIL CO. OF INDIANA.
• Court: Court of Appeal of Missouri (US)

221 S.W. 139

203 Mo. App. 404

HANKER v. STANDARD OIL CO. OF INDIANA.

No. 13480.

Kansas City Court of Appeals. Missouri.

February 16, 1920.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Charles O. Manker against the Standard Oil Company of Indiana. Judgment for plaintiff, and defendant appeals. Reversed.

John H. Lucas and Win. C. Lucas, both of Kansas City, for appellant.

Prince & Harris, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff, a carpenter in the employ of defendant, while at work at defendant's planer, a machine having knives on a cylinder rotating at a high rate of speed and used for planing and truing the surface of lumber, was on the 18th of December, 1916, injured by reason of his left hand and arm coming in contact with said knives, and brought this suit for damages. He recovered judgment in the sum of $6,200, and the defendant has appealed.

The charge in the petition is that —

"Defendant carelessly and negligently maintained said planer and required plaintiff and other workmen to work at and near said planer without having any safe and secure covering or guard or other protection to prevent plaintiff and such other workmen from coming into contact with said rotating knives, and carelessly and negligently failed to safely and securely guard said planer and rotating knives; that said planer and rotating knives could have been guarded, and it was perfectly feasible, practicable, and possible to guard the same without in any way interfering with the efficiency of said planer and rotating knives, or any of the machinery connected therewith; that the use of said planer and rotating knives without a safe and secure guard is highly dangerous and unsafe to the operator thereof, while engaged in his ordinary duties, and defendant knew, or by the exercise of ordinary care and caution might or could have known, that the operation of said planer and rotating knives without the use of safe and secure guards thereon was likely to entail injury to those who worked about the same, and particularly this plaintiff; that no notice was posted in said establishment giving warning of the dangerous character of this instrumentality."

The answer was a general denial, coupled with a plea of contributory negligence, in that plaintiff failed to make proper use of the guard which was on the machine, and the further plea that if he was injured it was the result of the risks ordinarily and usually incident to the business which he assumed in entering upon the employment.

One of the points made by respondent in his brief, which in the argument is termed a "motion to dismiss," though no formal motion to dismiss appeal was filed, is that the appeal should not be considered because of the insufficiency of the motion for new trial and of appellant's brief to specify the errors relied upon. Manifestly, however, both the motion for new trial and the brief are sufficient to present the errors relied upon and discussed herein, and hence the point made by respondent must be ruled against him. State ex rel. United Railways v. Reynolds 213 S. W. 783; Vahldick v. Vahldick, 264 Mo. 529, 532, 175 S. W. 199.

At the conclusion of the evidence in plaintiff's behalf and again at the conclusion of all the testimony, the defendant interposed a demurrer, which was overruled. The propriety of this ruling presents the main question in this appeal; the defendant contending that under the pleading and evidence plaintiff is not entitled to recover.

Unquestionably, the charge in the petition is based upon and attempts to charge a violation of the statute (section 7828, R. S. 1909) requiring that —

Machines "in all manufacturing, mechanical and other establishments in this state, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments."

But the question is, does the evidence support the cause of action pleaded? A proper understanding of this question calls for a description of the machine and a statement of plaintiff's evidence. It is from this source alone that we gather the facts hereinafter stated, so that they must be regarded as conceded and conclusive, at least for the purpose of disposing of defendant's appeal.

The planer in question consists of a long table some three or four feet wide, having a cylinder crosswise thereof and rotating just below the top of the table so that the knives on the cylinder came slightly above the surface of the table in a narrow opening or groove across the same, thus permitting them to plane or true the surface of a board or timber when placed on the table, pressed against the guide at the back side thereof, and shoved to the left over the table as the planing progresses. The table stood with its length extending north and south. The guide, against which the board or timber was pressed to make it run true, was at the back or west edge of the table, and the operator stood on the east side of the table at or about opposite the crosswise groove in which the revolving knives turned; said groove and revolving cylinder extending from the guide to the east edge of the table top where the workman planing the board stood. The board to be planed was pressed west against the guide and shoved to the south, the surface next to the table top being planed as it passed over the revolving knives. The cylinder was revolved at a high rate of speed by electricity which was turned on when the operator desired the planer to be set in motion, the cylinder revolving to the north and apposite to the direction the board was shoved.

At the back or west edge of the table, near that end of the groove, an iron bar rose perpendicular for two or three feet and then turned horizontally east across the table over the groove for almost the width of the table. The east end of this horizontal bar held a perpendicular tube some two or three inches in length in which was a rod which could be moved up and down and held at any point by means of a set or thumb screw on the tube in front of and within easy reach of the operator. On the lower end of the rod was fastened a slightly curved horizontal plate or guard, which was large and wide enough to cover the greater part of the tube, and especially that portion of the groove in which were the knives, next to the operator. The guard could thus be raised or lowered and set at any height above the table by means of the thumbscrew in the tube at the end of the arm as above stated. The guard was thus made so it could be raised or lowered in order to allow any width of timber to be placed on the table and planed and to pass under the guard, no matter how thick said timber might be, that is, within the limits between the table surface and the highest point to which the guard could be raised. And the duty of raising or lowering this guard and adjusting it at the proper height suitable to the particular timber desired to be planed devolved upon the one who desired to make use of the planer, and he could do this before setting the cylinder in motion by turning on the electricity.

Plaintiff's work did not require him to be constantly at the planer, nor did any one employé operate said machine, but, whenever in the course of the work being done a workman desired to plane or true a board, such workman would do it at the planer, adjusting the guard so as to be best suitable to the particular piece of work being...