Sanders v. Quercus Lumber Co.

• Citation: 187 Mo. App. 408,173 S.W. 740
• Decision Date: 30 January 1915
• Docket Number: No. 1348.,1348.
• Parties: SANDERS v. QUERCUS LUMBER CO.
• Court: Missouri Court of Appeals

173 S.W. 740

187 Mo. A. 408

SANDERS v. QUERCUS LUMBER CO.

No. 1348.

Springfield Court of Appeals. Missouri.

January 30, 1915.

Rehearing Denied February 16, 1915.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by Perry W. Sanders against the Quercus Lumber Company. From a judgment for plaintiff, defendant appeals. Conditionally affirmed.

M. U. Hayden, of St. Louis, and Sheppard, Green & Sheppard, of Poplar Bluff, for appellant. David W. Hill, of Poplar Bluff, for respondent.

ROBERTSON, P. J.

Plaintiff recovered a judgment for $7,500 on account of personal injuries, and defendant has appealed.

The plaintiff, about 30 years of age, was in December, 1912, working for the defendant in Butler county. At the time the defendant owned two sawmills, designated as No. 4 and No. 3. They were three-fourths of a mile apart. On the 17th day of that month the plaintiff went from mill No. 4 to mill No. 3, at which latter place he was working at firing the boiler and looking after the engine, and in doing this it necessitated repeated trips to be made between the engine and boiler, and in order to do this it was necessary to pass over a 2-inch line shaft about 18 inches above the ground. On this line shaft was a collar of a belt pulley that had been broken, leaving some of the broken spokes of the wheel thereon, and there was also a set screw on the shaft, all unguarded. No. 3 mill had a short time prior to the accident been constructed, and a floor placed in a portion of it, which, if it had been extended, would have completely covered this line shaft. The mill had been sawing and piling up lumber for something like a month before the accident. The plaintiff was passing from the engine to the boiler, and over this line shaft, when the old collar, or the set screw, caught in his clothing, taking him around with the shaft 10 or 12 revolutions, hitting him against the ground, tearing his clothing off of him about the middle of his body, rendering him unconscious, permanently injuring one of his ankles, almost destroyed the hearing in one of his ears, and causing injuries which affected his memory.

This action is based on section 7828, R. S. 1909, requiring shafting in all manufacturing, mechanical, and other establishments, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, to be safe and securely guarded when possible. The defendant now contends that its mill No. 3 was a mere shifting contrivance that is temporarily located in the woods to work up a small part of the there available saw timber, and then to be shifted to another place for the same purpose, and that, therefore, it does not come within the scope and intent of the statute. This contention cannot be upheld, because the defendant's only witness testified that the mill was about 90 feet long and about 18 feet wide, and that it was running on the date of the trial, 16 months after the accident to plaintiff.

The defendant contended at the trial, and now argues here, that mill No. 3 was not completed and a going concern, so as to come within the provisions of that law; but the testimony in behalf of plaintiff was to the effect that the mill had been producing and piling up lumber for some time prior to the accident. The machinery was permanently located. The defendant offered only one witness, its theretofore sawyer, who testified that the buildings of the mill proper had not been completed at the time of the accident, and that the only thing it had been run for was in cutting for building purposes, and that if the floor had been completed the shaft would have been under it. This is not similar to the case of Foster v. International Paper Co., 71 App. Div. 47, 75 N. Y. Supp. 610, cited and relied on by the appellant here, where the construction on the shaft was in progress when the accident occurred. Defendant's witness did not testify that, when the work on the construction of the mill is completed, the floor will be extended over this shaft. The defendant did not undertake to prove that it intended to extent the floor over this shaft. A witness for plaintiff testified that the shaft could have easily been protected. We hold that upon these facts defendant comes within the purview of the statute.

While it is not necessary for us to go to that extent, it may be said that, if the defendant was cutting material with this mill for its completion, the shaft being permanently located, then it was engaged in manufacturing within the meaning of the statute, where so dangerous a shaft as the one here in question could have been protected with so little trouble and expense. The statute is remedial and highly salutary (Cole v. North American Lead Co., 240 Mo. 397, 407, 144 S. W. 855, and Strode v. Columbia Box Co., 250 Mo. 695, 704, 158 S. W. 22), and it appears that there is good reason for holding that, when a manufacturing establishment is operating its plant in the same manner in which it would run it after completion, for commercial purposes, under the circumstance here disclosed it should have protected the shaft that caused the injury.

Again, it is contended by defendant that the plaintiff was not engaged in his ordinary duties when injured; but the testimony is conflicting upon that point, and the jury has resolved it in favor of the plaintiff. Hence this point is ruled against defendant.

It is said the judgment should be reversed, and the cause remanded, for the reason that the verdict is so excessive as to be evidently the result of passion and prejudice. The above reference to the injuries of the plaintiff are sufficient, in my opinion, to justify the amount of the verdict, and especially since the trial court, who saw plaintiff and heard him testify, has refused to disturb it.

Numerous other questions are raised, such as contributory negligence and alleged improper remarks of counsel for respondent in his argument to the jury; but all of these questions have been considered, and found to be so lacking of merit as to justify no further comment thereon.

The judgment is affirmed, in the event plaintiff remits according to the order contained in the concurring opinion filed herewith; otherwise, it will be reversed, and the cause remanded.

FARRINGTON and STURGIS, JJ., concur in a separate opinion filed.

STURGIS and FARRINGTON, JJ. (concurring).

We are convinced that the point made by appellant that the verdict, $7,500, is excessive, is well taken. It insists that the verdict is so grossly excessive as to indicate such passion and prejudice as, taken in connection with some irregularities mentioned, necessitates the granting of a new trial under the rule announced in Neff v. City of Cameron, 213 Mo. 350, 111 S. W. 1139, 18 L. R. A. (N. S.) 320, 127 Am. St. Rep. 606, and Phillips v. Shoe Co., 178 Mo. App. 196, 165 S. W. 1183. To this we do not agree, and think the error can be cured by a proper remittitur.

That plaintiff received very severe injuries and suffered much pain we do not deny. That such injuries are to some extent permanent we also agree. The suit was not commenced until more than a year after the injury, so that at the time of the trial the nature and extent of the injury could be determined with some degree of certainty. There were no bones broken or fractured. The permanent injuries shown by the evidence are confined to a sprained and dislocated ankle and impairment of the hearing and memory. The other injuries, though severe and painful at the time, have largely, if not entirely, passed away. The hearing is only impaired, more in one ear than in the other, and plaintiff could only hear a watch tick faintly an inch from one ear. He seems to have heard and answered all the questions at the trial with little difficulty, and it is not contended that he could not hear and carry on conversations fairly well. His hearing has been improving, rather than getting worse. The same is true of his memory. The evidence is not at all conclusive that this is permanently impaired. The tests in that respect seem to have been largely confined to the circumstances attending his injury, and, as he was caught so suddenly and rendered unconscious for some time, this is not very...