Tom Reed Gold Mines Co. v. Morrison

• Citation: 224 P. 822,26 Ariz. 281
• Decision Date: 12 April 1924
• Docket Number: Civil 2130
• Parties: TOM REED GOLD MINES COMPANY, a Corporation, Appellant, v. ERNEST B. MORRISON, Appellee
• Court: Supreme Court of Arizona

224 P. 822

26 Ariz. 281

TOM REED GOLD MINES COMPANY, a Corporation, Appellant, v. ERNEST B. MORRISON, Appellee

Civil No. 2130

Supreme Court of Arizona

April 12, 1924

APPEAL from a judgment of the Superior Court of the County of Mohave. E. E. Bollinger, Judge. Judgment reversed and remanded.

Mr. C W. Herndon and Mr. Louis L. Wallace, and Mr. John Dickinson for Appellant.

Mr S.D. Stewart, for Appellee.

OPINION

McALISTER, C. J.

The plaintiff, Ernest B. Morrison, brought an action under the Employers' Liability Law (Civ. Code 1913, pars 3153-3162) against the Tom Reed Gold Mines Company to recover damages for personal injuries. From a judgment in his favor for the sum of $15,000, entered upon the verdict of a jury, and a denial of its motion for a new trial, defendant appeals.

At the time of the injury Morrison was operating what is known as a left-hand, cut-off saw which swung to and from the timber to be cut, and ran by electric power. It was suspended in a frame to which was fastened a handle and a weight; with the former it was pulled against the timber, and with the latter it was drawn back automatically after it had completed the cut and was released by the operator. In front of and close to it was a long platform or bench with a shallow groove through which the saw passed and rollers upon which the timber rested and was drawn forward for cutting. Attached to the back of this bench and to the right of the person facing the saw was a six or eight inch board to prevent the timber from falling, and between the saw and the handle was to guard about halfway down the former to prevent the hand, arm and body of the operator from coming in contact with it. When the cut was finished, the handle was released, the saw drawn back automatically by the weights, the block cut off removed, and the timber drawn forward to be cut again. If the operator grasped the handle with his left hand, his body was to the right of the saw and the shield or guard, and the danger of injury was small; but if he puled it with his right hand his position was naturally in front of the saw, where his body, hand and arm would be in more danger from the saw, as it was drawn against the timber and toward him, than if standing where the use of his left hand would place him.

When the accident occurred, Morrison was cutting wedge blocks about one foot in length out of left-over pieces of timber, not themselves very long. He had pulled the saw with his right hand, made the cut, and reached with his left to remove the block cut off when his arm and fingers in some way came in contact with the saw and were injured. He testifies:

"As I sawed a block off I caught hold of it like that, and the saw caught the block and caught me both, and hit me there on the arm, and I got out. I don't remember how it hit my finger. I know it hit me on the arm first."

And on cross-examination, when asked where his left hand was at the time, he replied:

"It would be about like that until I cut this block off. As I reached over to get that block the saw simply wobbled, and it just cut that block instantly and jerked me right into the saw, and I jerked out, and I don't know how it happened to hit my fingers. I didn't notice. I got out of there best I could."

E. E. Jefferson, a witness for plaintiff, after stating it was a left-hand saw, said, in reply to the question:

"In other words, you would pull it with your left hand?"

"Have to pull it with left hand, or I am in danger with these pieces. I am very much in danger of it."

W. B. Phelps, a witness for the defendant, testified that the guard on the right side of the saw was to protect the operator, and as long as he grasped the handle with his left hand, his right being on the timber, the saw would swing clear of him on his left. This was considered the safe way to operate it, while to pull it with his right hand was dangerous.

"We always instruct our way (men?) to pull the saw with the left hand."

Morrison's fingers were slightly cut by this saw five or six days previous to the accident while he was operating it with his right hand, and the superintendent of the company testifies that he told him at that time to use his left hand.

Appellant contends that the evidence does not support the judgment because it conclusively appears from the foregoing facts that the injury was caused by appellee's own negligence in operating a left-hand saw with his right hand, and that it would not have occurred had he been using his left hand as a reasonably prudent man would. It is perhaps true that it is more dangerous ordinarily to operate this saw with the right than with the left hand, but this fact alone does not place one injured while so handling it beyond the benefits of the law. To have this effect it must appear that the operator's injury was caused by such handling, and the facts in this case are not such as to lead necessarily to this conclusion. It might have been negligence to have pulled the saw with the right hand instead of the left, but, unless the evidence shows that his injury was caused thereby, it should not defeat his action, and for aught that appears he would have been injured even if he had pulled the saw with his left hand. He was not hurt while handling the saw, but after he had made the cut, released the saw, and was removing the block he had just cut. Whether he operated it with his right or with his left hand, he naturally removed the block cut off with the latter, and in order to do this when he was also directing the saw with that hand it was necessary for him to release the handle and reach past and to the left of the saw, the lower half of which was unprotected by the shield or housing. If the saw did not fall back promptly when released, but wobbled and struck, the likelihood of injury to the arm and hand as it quickly reached past the saw for the block would appear to be just as great, if not more so, than if it had been extended to the unprotected side of the saw from where one operating the handle with the right hand would naturally stand. To the danger of having his arm jerked into the saw when extended from this position to grasp the block would be the added peril of reaching in front of and close to the saw. However, there was little danger, if the saw fell back and clear of the platform promptly after it was released, but for some cause, according to the testimony of appellee, the only witness to the accident, it failed for the first time to go backward as quickly as it should after making a cut. In his cross-examination this appears:

"Q. Had you had any previous trouble about this saw not falling back when you got through cutting? A. No, sir; I never had.

"Q. This is the first time it had not fallen back? A. Yes, sir."

Just why it failed is not clearly disclosed. However, according to appellee's statement, the saw was cracked and lacking one entire tooth and one-half of another, and the weight which drew it back after each cut had not been working well on account of the sawdust and particles of wood under it. This material was there then and had been accumulating for quite awhile, though appellee did not notice how much there was at the exact time of the accident. He said concerning it and the weight:

"Well, this weight setting up there as I have told you, was about ten or eight inches high, with a hole in the top of it, and this rope being in that position, this sawdust, as it would accumulate there, would naturally cause this weight not to go down, not to release the saw as it should, for the reason, if this weight should happen to stand on end and not lay down."

Appellee was a novice in the use of this machine. He testifies that he had been operating it part of the time for only about three weeks, and that he used his right hand when cutting small pieces, such as wedge block, and his left when cutting larger timber, such as cribbing, because "the way the cribbing was going through there a man would naturally use his left hand in that position." He testifies further that he had never received any instructions as to how to handle it, but that some time previous to the accident he had seen and helped another employee, George Heldman, use it, and that he pulled it sometimes with his right and sometimes with his left hand. This, it appears from appellee's statement, was the only source of information he had as to the method of its use. He denies that the superintendent told him six days before this to use his left hand hence it was for the jury to say whether he had been...