Moore v. Southwestern Sash & Door Co., 5324

• Decision Date: 26 March 1951
• Docket Number: No. 5324,5324
• Citation: 228 P.2d 993,71 Ariz. 418
• Parties: MOORE v. SOUTHWESTERN SASH & DOOR CO.
• Court: Arizona Supreme Court

Page 993

228 P.2d 993

71 Ariz. 418

MOORE v. SOUTHWESTERN SASH & DOOR CO.

No. 5324.

Supreme Court of Arizona.

March 26, 1951.

Robert & Price, Phoenix, for appellant.

Moore & Romley, Charles L. Hardy, Phoenix, for appellee.

UDALL, Chief Justice.

This action arose when R. F. Moore, plaintiff-appellant, a building contractor, suffered the loss of three fingers when he accidentally thrust them in a joiner, a mechanically operated machine for planing lumber, on the premises of the defendant-appellee, Southwestern Sash & Door Company. Whether or not the trial court properly directed a verdict for the defendant at the close of plaintiff's evidence is the sole question presented on this appeal.

On the day of the accident plaintiff drove to the mill of defendant with four heavy timbers to have them milled, i. e., planed and smoothed, the timbers having been theretofore marred on delivery to one of plaintiff's construction jobs. Each of the timbers, according to plaintiff's testimony, weighed 400 or 500 pounds. Upon arrival at the mill yard of defendant, plaintiff was informed by defendant's foreman, Tom Suffolk, that not enough men were available to carry the timbers into the mill. The foreman requested Moore's assistance and plaintiff agreed to help. Excerpts from his testimony relative thereto are as follows:

'Q. What did he (the foreman) say, and what did you (defendant) say? A. He said they were heavy. He didn't think he had men enough to carry them in. 'I believe I will have to get you to help me take them in.' I said 'I will. We need them.' So he went, got some boys and come out.

* * *

* * *

'Q. Did he ask you to help mill them? A. Yes, sir.

'Q. Where was that conversation? A. As we were going in, as I recall, that is when he asked me to help mill them and get them out.

'Q. To help mill them and get them out? A. Get them out. I took it for granted to complete the job.'

Plaintiff aided in carrying the timbers from his truck to a joiner in the mill and in pushing the timbers over the joiner to mill them. The joiner involved is a mechanically operated machine for planing lumber. It consists of a front table which may be raised or lowered to adjust the depth of the cut, a shaft to which are affixed three blades each twelve inches long, and a back table, fixed in height, which receives the timber after it is pushed over the blades. If it is necessary to plane more than one side of the timber, as in the instant case, the timber must be carried from the back table to the front table for each surface to be separately planed. The shaft rotates at an extremely high rate of speed. At the time of the accident the front table was so adjusted that the blades were raised about one-eighth of an inch above the level of the table.

The accident, which gave rise to the instant suit, occurred after three of the four timbers had been milled and the fourth was nearly completed. Plaintiff, wearing gloves, was assisting in the operations. He testified as follows:

'Q. Did you lift them (the timbers) up and put them on the machine? A. We did.

'Q. Then what did you do? A. I stayed on the opposite and pushing on there until they go through, until we milled all four sides, and when the timber was completed we would take it to the truck.

'Q. Who was present there when you were doing this? A. Well, Tom was there.

'Q. That is Tom Suffolk? A. Tom Suffolk, that is right, all the time, on and off. He would go away, I suppose to look after another job, and he would come back and measure the timber to be sure they were right and he went out, and he kept doing that until the last timber. And the shavings and stuff would pile up on the machine, and the boys, I seen they were neglectful to push this off and I noticed it kept riding over there. It wasn't doing a nice job. I kept raking the shavings off all the time until the last timber. I raked a little bit too far; the shavings were piled near the blade.

'Q. How close to the blade? A. Very close. I kept pushing them.

'Q. Two inches or two feet or---- A. Very few inches, I will say. And I kept pushing them off all the time, but this particular time I touched the blade in pushing the shavings off.

'Q. And then what happened? A. I lost three fingers in an instant.'

At the close of plaintiff's evidence defendant moved for a directed verdict upon the grounds that plaintiff had failed to prove his allegations of negligence and that it affirmatively appeared from the evidence, including the admissions of the plaintiff himself, that the accident was the result of plaintiff's own fault or carelessness. The motion was granted and from the judgment entered thereon and the denial of plaintiff's motion for new trial this appeal was taken.

The evidence conclusively shows that plaintiff was a building contractor then engaged in the business of constructing homes. He was generally familiar with mechanical saws and machinery used in the trade, and on previous occasions had been in defendant's mill and observed same in operation. He testified, however, that he didn't know how dangerous this particular joiner was. Plaintiff admitted that there was no mechanical defect in the joiner and that the machine itself could not have caused the accident without an affirmative act on his part. He testified that he knew care must be exercised in the use of such machinery because it was dangerous if any part of the human body came in contact therewith. Plaintiff stated that he had observed the planing blade projecting above the surface of the front table and had observed its effect in milling the first three timbers. There was no negligence shown on the part of any co-worker. Plaintiff admitted in a deposition taken prior to trial that he knew better than to pass his hand over the blade. Furthermore, both at the trial and in his deposition he admitted that no one directed...