Trigg v. Ozark Land & Lumber Co.

• Decision Date: 15 February 1905
• Citation: 86 S.W. 222,187 Mo. 227
• Court: Missouri Supreme Court
• Parties: TRIGG v. OZARK LAND & LUMBER CO.

86 S.W. 222

187 Mo. 227

TRIGG v. OZARK LAND & LUMBER CO.

Supreme Court of Missouri, Division No. 1.

February 15, 1905.

MASTER AND SERVANT—INJURIES TO SERVANT —PROXIMATE CAUSE—DEFECTIVE MACHINERY.

1. Where, in an action for injuries to a servant, he alleged that his injuries resulted from defects in the machinery, the burden was on him not only to show such defects, but also that they caused the injury.

2. In an action for injuries to a servant, held, that the evidence did not establish that the accident was the result of defects in the machinery.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by H. A. Trigg against the Ozark Land & Lumber Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Botsford, Deatherage & Young, W. J. Orr, and James Orchard, for appellant, cite, inter alia, McManamee v. Railway, 135 Mo. 447, 37 S. W. 119; Watson v. Railroad, 133 Mo. 246, 34 S. W. 573; Waldhier v. Railroad, 71 Mo. 515; Schneider v. Railroad, 75 Mo. 295; Gurley v. Railroad, 93 Mo. 450, 6 S. W. 218; Capital Bank v. Armstrong, 62 Mo. 59; Buffington v. Railroad, 64 Mo. 246; Price v. Railroad, 72 Mo. 414; Ely v. Railroad, 77 Mo. 34; Oglesby Case, 150 Mo. 176, 37 S. W. 829, 51 S. W. 758; Walker v. Owen, 79 Mo. 568; Holmes v. Braidwood, 82 Mo. 617; Witascheck v. Glass, 46 Mo. App. 214; Martinowsky v. Hannibal, 35 Mo. App. 78; Fell v. Coal Mining Co., 23 Mo. App. 224; Brooks v. Yocum, 42 Mo. App. 521; Pryor v. Street Railway Co., 85 Mo. App. 367; Jacquin v. Railway, 57 Mo. App. 320; Hite v. Railway, 130 Mo. 132, 31 S. W. 262, 32 S. W. 33, 51 Am. St. Rep. 555; Bartley v. Railway, 148 Mo. 139, 49 S. W. 840; Seckinger v. Mfg. Co., 129 Mo. 602, 31 S. W. 957; Hollmann v. Lange, 143 Mo. 108, 44 S. W. 752; McClanahan v. West, 100 Mo. 322, 13 S. W. 674.

A. H. Livingston and Sherwood, Young & Lyon, for respondent.

VALLIANT, J.

Plaintiff recovered a judgment for $5,000 damages for personal injuries alleged to have been received, while he was in the service of the defendant, through defendant's negligence. Defendant appeals.

Defendant operates a sawmill, in which the plaintiff was employed. The plaintiff's usual work was to oil the machinery, but, in the temporary absence of the regular operator, he was frequently called to operate a machine that was called an "edger," and was so engaged when the accident of which he complains occurred. The negligence charged in the petition is that the edger "was worn, out of repair, and unsafe to be handled or used," and that defendant knew it, or, if it had exercised reasonable care, would have known it. The evidence for the plaintiff tended to show as follows: The edger is a machine used to rip off the edges of lumber, or rip the boards into desired widths. There were several saws in the machine, fixed on a shaft 9 or 10 feet long. These saws were movable, and were adjusted by the operator to rip boards to any desired width. The plaintiff's immediate task was to rip boards that were 12 inches wide in two, making boards 6 inches wide, and the saws were set accordingly. There were rollers to carry the lumber to the saws, and rollers beyond to carry it after it had passed through the saws to the place of deposit; and there were rollers, called "dead rollers," to bear down on the lumber and hold it firm against the saws; these last-named rollers weighed 100 or 115 pounds. They could be raised or lowered by the operator, by means of a lever at his hand, so as to adjust them to lumber of any thickness. He testified that he had been ripping some 2-inch pieces, and the rollers were set for that, but, as he was to change to 1-inch stuff, he let the rollers down to bear at 1 inch. After one or two pieces had passed through the saws, and he was passing another piece through, one part of it—the half to the right—was thrown back by the machine and struck him on the hip, inflicting the injury complained of. The other part passed on through. Plaintiff also testified that the boxing in which the shaft turned was so worn that it required constant oiling to keep it from getting hot; that it was so worn that he could insert his finger in it, and frequently did so, to get out trash. "It was worn down until it seemed as though the saw shaft dropped down and bent in some way." It had been in this condition for several months, to the plaintiff's knowledge. The feed rollers were fluted, and they had worn smooth in places. The plaintiff had been at work in and around the mill about ten months, and had been oiling this machine about two months. In undertaking to tell how it occurred, he said he "supposed the piece got hung on the saws." Pfenninghausen, a sawmillman, testified as an expert for plaintiff. He said that, if the boxing was so worn that the shaft had any end play "to amount to anything," it would cause the saw to lead, and, if it had any side play, it would cause the shaft to leave the proper position, in line with the rolls, and cause the saws to lead; that is, they would not run in a line with the rolls, but cut the lumber wedge-shaped—having the effect of pinching the lumber fed into the machine, throwing it off, and forcing it out back—and the machine would not give satisfaction. "Q. It is running through, say, a board sixteen feet long, twelve inches wide, and one inch thick, splitting it into six-inch pieces of No. 1 first-class lumber (you have different classes of lumber); and, if that board were to fly back, and was fed again through this roll, and go through, what would be the cause of that, in your judgment? A. There are various causes. Of course, the probable cause is by the saws not running in line with the rolls. (To this question and answer defendant objects, because plaintiff himself states that the lumber did clear the saw. No ruling by the court.) Q. Suppose it had gone far enough to split the piece in two; would it be between the saws then, or not? A. The saw would have the same action on the piece. Q. Until it had come clear back this way? A. Yes, sir; until it would go clear out of the saws, if the saws were to lead as the board went in here, and make a wedge in leading— Of course, as they lead, it makes a board a trifle wider than as it first enters; and, if the board was not clear out, of course, it gets wider between the saws, and the friction of the saws would throw the board back, if not clear out here. Of course, if it is clear out here, it is clear out of reach of the saws. Q. You spoke of the rolls having teeth on them. What is the object of the teeth being on the rolls? A. The object of the teeth is to secure a steady feed, and, if the teeth were to become worn on the bottom rolls, of course, if they are not sharpened or some other roll put in, it would not insure a safe feed. Of course, upon a safe feed depends a good deal, although these rolls here presses the board down on the lower rolls here; but, at the same time, if the teeth are dull, and if, as I say, the saws lead, the saws can push this board back through here by reason of being smooth rolls. If the teeth are sharp, of course, they claw into the board, and would, if anything, attempt to push the board through, even if wedged in the saws, and it usually occurs, if a board passed behind here to push the board through. Of course, if these rolls are smooth, they keep on running, but the board remains there. Of course, here it has two feeds, but out here it only has one feed, and, if it gets wedged, it throws it back there." Plaintiff's testimony also tended to show that the machine had been in operation for ten months or more before, and was operated for two months or more after the accident without repairs being made; that it was stopped only a few minutes after the accident, when another man took the place the plaintiff had occupied, operating the edger, and went on with...