Owensboro Wagon Co. v. Boling

• Decision Date: 30 January 1908
• Citation: 107 S.W. 264
• Parties: OWENSBORO WAGON CO. v. BOLING.
• Court: Kentucky Court of Appeals

107 S.W. 264

OWENSBORO WAGON CO. v. BOLING.

Court of Appeals of Kentucky.

January 30, 1908

Appeal from Circuit Court, Daviess County.

"Not to be officially reported."

Action by Claude Boling against the Owensboro Wagon Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

E. B Anderson and C. M. Finn, for appellant.

Lavega Clements and Ben D. Ringo, for appellee.

NUNN J.

This appeal is from a judgment recovered by appellee for $6,250 for the loss of his left hand, it having been severed at the wrist, which he alleged was caused by the negligence of the servants of appellant superior in authority to him. Appellant's counsel assign many reasons why the judgment should be reversed. Counsel for both parties filed lengthy briefs and argue with ability their theory of the case. However, we have not the time nor inclination to discuss all the questions presented by them. We are of the opinion however, that the lower court's instructions were too numerous and calculated to confuse the minds of the jurors and submitted for their consideration questions that were not based on any testimony introduced on the trial. There were other errors committed on the trial to which we will refer later.

The petition was sufficient and stated a cause of action. It was alleged that appellee lost his hand by the negligence of appellant's servants superior in authority to him, and particularized the acts and omissions which constituted the negligence--i. e., that he was raised on a farm, was only 18 years old and had never worked with machinery before he was employed by appellant, of which fact he informed appellant's superintendent at the time he employed him; that the rip saw, at which he was placed to perform labor, was defectively constructed in the fastenings and bolts that held it; that it was left unguarded, with nothing to keep his hand from coming in contact with it; and that defendant failed to furnish him a reasonably safe place in which to perform his labor. Appellant filed an answer, controverting all the affirmative matter contained in the petition, and pleaded contributory negligence on the part of appellee. The testimony showed that appellee was, at the time of his employment by appellant, only 18 years of age, and had had no experience in working with machinery, and that he informed appellant's superintendent of this fact; that he was put to off-bearing lumber from a rip saw, and after he had worked 8 days, but not consecutively, he was directed by the foreman, who had authority to do so, to remove the belt, by the use of a lever, from the pulley which operated the saw to a loose pulley called the "idler," to raise the table, under and through which the saw revolved, and then to remove two taps, or screws, which were situated about 4 and 6 inches from the saw, for the purpose of oiling the machine. In attempting to comply with the directions of the foreman and at the moment he undertook to remove the oil caps, for some reason not explained, the saw cut off his hand.

The following questions were asked of and answered by appellee. "Q. Had you ever oiled that machine before? A. No." He stated Mr. Goode was his foreman, and that he had been working there about eight days. "Q. During that time, who had been telling you what to do? A. Mr. Goode. Q. Did Mr. Goode then, or at any time before that, show you how to oil that saw? A. No. Q. Did he, or anybody else, ever explain to you that when you put the band on the idler that this saw mandrill did not stop, but kept on running? A. I thought it stopped. Q. Did they ever tell you about it? A. No. Q. Did anybody ever explain to you how that thing kept on running by its own momentum for a good long time? A. No. Q. How was that shafting that held the saw fixed in this table? A. I don't know. It was fastened in there solid. Q. Was there any rattling or jar in there? A. No. Q. Smooth running? A. Yes. Q. Could you tell, just looking at that saw, actually whether it was in motion or still? A. No. Q. What did you think about it? A. I thought it was still. Q. If you had known that the saw was in motion, and knew of the danger, or had had it explained to you, would this acccident have occurred? A. No, sir." He further stated that the saw at the time looked like one circular piece of steel. The teeth could not be seen. Therefore he thought it was still, and had stopped running when he threw the belt onto the idler.

There was no testimony introduced tending to show that this rip saw or its attachments were defective or out of repair. The only thing that tended in the least...