Truman v. The Kansas City

• Decision Date: 07 October 1916
• Docket Number: 20,377
• Citation: 98 Kan. 761,161 P. 587
• Court: Kansas Supreme Court
• Parties: CHARLES L. TRUMAN, Appellee, v. THE KANSAS CITY, MEXICO & ORIENT RAILROAD COMPANY, Appellant

161 P. 587

98 Kan. 761

CHARLES L. TRUMAN, Appellee, v. THE KANSAS CITY, MEXICO & ORIENT RAILROAD COMPANY, Appellant

No. 20,377

Supreme Court of Kansas

October 7, 1916

Decided January, 1916.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

New trial granted.

SYLLABUS

SYLLABUS BY THE COURT.

1. FACTORY ACT--Two Acts of Negligence Alleged--Only One Proven--No Material Variance--No Prejudicial Error. Where a cause of action sufficiently pleads and the evidence sufficiently proves such negligence as will render a defendant liable thereon it is not a material variance that the same cause of action also alleged other acts of negligence which were not established by the proof, when the superfluous allegations not proved could not have misled the defendant to his prejudice. (Civ. Code, § 134.)

2. SAME--Railroad Repair Shop--When Governed by Factory Act. In the conduct of its car-repair shop, a railroad company which has elected not to come under the provisions of the workmen's compensation act (Laws 1911, ch. 218; Laws 1913, ch. 216), is governed by the factory act (Laws 1903, ch. 356, Gen. Stat. 1909, §§ 4676-4683), and its liability for injuries sustained by its workmen in such car-repair shop is controlled by the latter act, and not by the common carriers' liability act (Laws 1911, ch. 239), following Bubb, Adm'x, v. Railway Co., 89 Kan. 303, 131 P. 575.

3. FACTORY ACT -- Unguarded Circular Saw -- Injuries to Workman -- Certain Evidence Properly Rejected. Where a workman in a car-repair shop sustained injuries to his hand which came in contact with an unguarded circular saw it was not error to exclude evidence that the sawing machine had been examined and found without fault by the state factory inspector; nor was it material error to exclude testimony that other saws were similarly operated in the community without safeguards.

4. SAME -- Finding of Jury -- Conclusive. Ordinarily a jury's finding that it is practical to attach a safeguard to a piece of dangerous machinery, when such finding is approved by the trial court, is conclusive.

5. SAME--Unguarded Machinery--Burden of Proof--Proper Instruction. The court's instructions to the jury that the plaintiff was not required to prove that it was practical to attach a safeguard to the machinery which injured him and that the burden to prove its impracticability rested on the owner of the machine were proper and in conformity to the provisions of the factory act and the doctrine announced in Caspar v. Lewin, 82 Kan. 604, 109 P. 657.

6. SAME--Excessive Verdict. A judgment for $ 8000 as damages to plaintiff's hand discussed and held to be excessive. Plaintiff given option of a judgment for $ 5000 or a new trial.

R. L. Holmes, C. G. Yankey, W. E. Holmes, all of Wichita, John A. Eaton, Dudley W. Eaton, and H. J. Eaton, all of Kansas City, Mo., for the appellant.

John W. Adams, and George W. Adams, both of Wichita, for the appellee.

OPINION

DAWSON, J.

The plaintiff obtained a judgment for $ 8000 as damages for injuries to his right hand while operating a circular saw in the car-repair shop of the defendant at Wichita. The saw, which was thirty inches in diameter, revolved upon an adjustable steel table, projecting a few inches above the table-top, and a considerably larger part of the saw, some twenty-two inches of it, revolved beneath the table. The machine had a device for feeding boards and timbers into the saw, and the speed of this feeding device was regulated by a system of cone pulleys, one-half of which were attached to the machine below the table-top and about ten inches distant from the saw. To change the speed of the feeding device it was necessary to reach under the table and shift a belt from one cone pulley to another by hand. There was no mechanical belt shifter or other contrivance for shifting the pulley belt, and the space under the table between the cone pulleys and the saw was open and unguarded. It was also in evidence, and in conformity to an elementary principle of mechanics, that it is inconvenient and difficult to shift the belt of a system of cone pulleys except when the machine is running.

As to the manner and extent of his injuries, the plaintiff testified:

"One of the boys brought in a board and wanted it ripped; and I started the saw and after I got it started the belt underneath the machine wouldn't pull the feed to feed it and it was dangerous to feed it without the feed running. We used to put on rosin on the belts to make it pull the feed and the master mechanic cut us out on the rosin, then we put on what was called belt dressing. It is in sticks about nine inches long and about one and a half through. You take that in your hand and hold it on the belt which is underneath the saw and runs from the main shaft where the saw was applied down to another shaft below that. It has three different feeds on it and on these feeds there is a high speed, middle speed and low speed. You have to put this belt on there by your hands; there is no belt shifter fixed to shift that. You have got to shift it when it is in operation with your hands. . . . The only way you have, you have got to go around and get behind the machine and get down in there to shift this belt. So I applied this dressing to it. In applying the dressing it jumped from this one, the middle one, down to the low speed again, and threw my hand over like that and cut these two fingers off and injured this one until it isn't any good. At times I can't use it. In my trade I can't use a hammer or a saw, and the fleshy part of my hand hurts and it swells up here on the knuckle of the other one; my finger is helpless, so all I have is one finger and the thumb. There is a continual hurt all the time, even at nights. It is my right hand. . . . Up to the time of my injury I was able to use tools. I was drawing wages of $ 2.24 a day. I have never done any house work to amount to anything. My occupation is car man, car carpenter. I had steady employment with the Orient at that time. My health is good. My nervous system was in good condition. I was stout physically and had no physical infirmities and was able to put in a full day's work and earn a steady salary. These two fingers are off right at the fingers on my hand; they are the two small fingers on the right hand. The other finger is affected; that is, you see it is impossible to straighten it any more than just like that; and if I just bump it or shake it a little it is helpless. I can straighten it out like that. It is affected right in the joint. It was cut where the scar is--cut clear to the bone. It was stiff for about two months and a half. I am able to just ordinarily use it. I can close it about half. I can't catch around anything with it. There is no strength in the second finger; it is weak, helpless. I have practically only one finger on that hand. I haven't got the strength in the arm that I had before.

"I have worked part of the time since the accident. I am now working for the Missouri Pacific, drawing $ 1.60 a day, trucking freight. If I go to lift anything I just get my arm under it because I can't lift anything with this because I ain't got strength enough. I made an effort to see if I could get better wages, but I couldn't."

Certain special questions were answered by the jury:

"3. State what was the direct and proximate cause of plaintiff's injuries. Ans. By his hand coming in contact with an unguarded saw.

"6. Was it practicable to safeguard said saw in question at the point where plaintiff was injured? Ans. Yes.

"8. Could plaintiff have shifted the belt running on the two cone pulleys underneath the table while the machine was stopped? Ans. No."

Defendant's chief grounds of appeal and errors assigned will be noted in order. It was not error to overrule defendant's demurrer to the evidence, nor was there any material variance between the pleading and the proof. (Civ. Code, § 134.) It is true that one of the grounds of pl...