Wagner v. Gilsonite Const. Co.

• Decision Date: 10 April 1920
• Docket Number: No. 21163.,21163.
• Citation: 220 S.W. 890
• Parties: WAGNER v. GILSONITE CONST. CO.
• Court: Missouri Supreme Court

220 S.W. 890

WAGNER v. GILSONITE CONST. CO.

No. 21163.

Supreme Court of Missouri, Division No. 1.

April 10, 1920.

Appeal from St. Louts Circuit Court; Samuel Rosenfeld, Judge.

Action by Thomas G. Wagner, by next friend, against the Gilsonite Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition that plaintiff remit $6,000 from the judgment for $18,000; otherwise, reversed and remanded.

Nagel & Kirby and Charles P. Williams, all of St. Louis, for appellant.

Bartley & Douglass, of St. Louis, for respondent.

SMALL, C.

I. On December 1, 1916, plaintiff, then about 19 years of age, was injured by a circular saw while employed by defendant, as a helper to the operator of the saw who was engaged in cutting lumber into strips about 20 inches long and 4 inches wide, for the purpose of making wooden boxes. The saw was mounted on an iron table an or framework, and worked backwards and forwards through a slot in the top about an inch wide. It, was operated by a lever, and could be pulled toward the operator and raised up, so that about one-half was on top of the table, and it could also be pushed back, so that three-fourths or more extended below the top of the table. In cutting these pieces of lumber, they would accumulate on top, around, and under the table, and get under the saw. Sawdust would accumulate, too under the table. It was the plaintiff's duty to keep the sawyer supplied with boards, and to carry the pieces of boards, when cut, away, and deliver them to the carpenters, who were making boxes with them. The plaintiff's duties required him to work fast. He had worked for the defendant several months, but in this particular capacity only about six days. He had never taken any blocks from under the machine, while it was hurt. On the day when he was injured the machine was running, and while the plaintiff was attempting to pull out a block or piece of board that had bounced or fallen under the machine, his right hand and arm were caught by the saw and severely injured.

The charge of negligence is that the circular saw was so placed as to be dangerous to the plaintiff while engaged in his duties in picking up the blocks or pieces of board which had fallen under the table, unless the saw was guarded, so that plaintiff's hand could not come in contact with it, and that plaintiff's injuries were directly caused by defendant's failure to furnish plaintiff a reasonably safe tools and appliances with which to work, in that:

First. That the saw was so situated as to be dangerous to plaintiff while picking up the blocks under the table, and also so located that it could have been guarded without interference with its operation, and with but little expense, so that plaintiff's hand could not come in contact with the saw when reaching under the table to pick up blocks, but defendant negligently failed to guard said saw, and thereby caused the injury to plaintiff's hand as aforesaid.

"Second. That the defendant knew, or by the exercise of ordinary care could have known, that blocks which were being cut by the saw would fall under the table, and that in picking up the blocks under the table, as plaintiff's duties required him to do, his hand was apt to come in contact with the saw, and, had the defendant exercised ordinary care for the safety of plaintiff, it would have extended the top of the table or closed up the end thereof, so that the blocks could not fall under the table, and thereby avoided any injury to plaintiff, but negligently failed to do so."

The answer contained a general denial; also a plea of contributory negligence, which the reply denied.

On the voir dire examination of the jury, the plaintiff's counsel asked whether any of the jurymen, or their near relatives, were employed by the Ætna Insurance Company. Defendant objected to this question as improper, and that it was immaterial whether defendant was insured or not; that a list of cards had been furnished counsel, showing the occupation of each juror. To which plaintiff's counsel replied that the cards only showed the present occupation of each juror, and that his question goes to whether they have been so employed heretofore and includes their near relatives. The court overruled defendant's objection.

After plaintiff stated his age and residence, the following occurred:

"Q. With whom do you live? A. Mother and sister.

"Mr. Williams: 7, object to that as immaterial.

"Mr. Douglass: How is that? A. With :my mother and sister.

"Mr. Williams: The ground of my objection is this: What Mr. Douglass is trying to do * * * is to bring out evidence of the family relationship of this man. My objection is that that doesn't make any difference with respect to the measure of damages in this case, and is absolutely immaterial.

"Mr. Douglass: So far as the measure of damages is concerned, that is true. My purpose is that this record shows that his mother is the next friend. The question naturally arises, why wasn't the father appointed, and I want to show he has no father.

"Mr. Williams: Let him ask whether his father is living. It makes no difference anyway. It isn't denied that the next friend is here.

"Mr. Douglass: I have a right to clear it up before the jury.

"Mr. Williams: In view of the issues, it is absolutely immaterial.

"Mr. Douglass: Is your father living? A. No, sir.

"Mr. Williams: I move to strike that out, on its utter immateriality.

"The Court: I will overrule the objection."

To this action of the court defendant objected and excepted.

Among other things, plaintiff testified, as follows:

"I had been bringing material to and taking material from this saw for a period of about six days before I was hurt. During that time Broderick was operating the saw told Mr. Douglass (on my direct examination) that did not remember ever picking up any blocks from under the saw before this time when I got hurt. I can't now remember that I ever picked up anything under that saw before. I was pretty familiar with the way the saw ran. * * * When I got down there, to pick up the block that was in there, I did not tell Broderick that I was about to get down there, and to look out for me. I did not notify Broderick that I was going down there and get that piece. I didn't say anything to him at all to the effect that I was going down there, and for him to be careful or anything else. I didn't do it, because I didn't have time.

"Q. Why, it wouldn't have taken any time to have told him to hold the saw back there a second? A. I would have had to stop work to call his attention to that, if I wanted to speak to him. With that saw running, you can't speak as you can in a quiet room.

"Q. Certainly not, but it would have taken just a second to have said, `Mr. Broderick, wait a minute; I want to get a piece out"from under here.' Would it have taken you longer than that? A. No.

"Q. Well, you were in such a hurry, as I understand you, that you didn't have time to say that to him; is that right? A. Yes, sir.

"Q. Well, you knew that the saw was in that table there, didn't you? A. Yes, sir.

"Q. And you knew that that—the way that saw was operated, didn't you? A. Pretty well; yes, sir.

"Q. You knew that the saw was pulled backward and forward through the table there by the operator, didn't you? A. Yes, sir.

"Q. And you knew exactly how far the saw came out under the table toward the side where You were working, didn't you? A. No, sir.

"Q. You knew pretty accurately, didn't you? A. I knew pretty well, but I didn't know just how far.

"Q. But you knew pretty well how far it came, didn't you? A. Yes, sir.

"Q. And you knew how that saw came out that way when the lever was pushed forward from the operator, didn't you? A. Knew that it came back

"Q. Knew that it came back? A. Yes, sir. "Q. And you knew about how far it came back? A. I knew it came back pretty far; yes, sir.

"Q. Knew it came back pretty far. And you knew that the saw was revolving rapidly, didn't you? A. (No answer.)

"Q. Now, referring to this picture that your counsel showed you, Plaintiff's Exhibit A, you say that you didn't have time, knowing the situation of that saw, knowing about how far it came back, as shown in this picture here [Plaintiff's Exhibit A] you didn't have time to say anything to Broderick? A. Broderick was working; so was I. I had a lot of work what I had to do, and a whole lot of pieces of wood I had to carry to the carpenter's, and I had also to get other wood, so that Broderick could work, and if I would stopped, and not kept him in work, I would have got in trouble.

"Q. Didn't you tell me that you had already carried to Broderick a number of pieces of 4x4, upon which he was sawing at the time you got hurt? A. Yes, sir. They only lasted about that quick (illustrating). You cut up one of them pieces of wood and you have to take them a half a block to them—to him.

"Q. Now, if you wanted to get a piece out, why didn't you reach underneath that pulley shaft? A. Because the platform was back there, up high, and there was sawdust in there.

"Q. How much sawdust in there? A. I don't know how much.

"Q. Have you any recollection? A. Well, I couldn't say how much sawdust was there.

"Q. Was the sawdust piled up higher than the pulley shaft there? A. Well, it was—there was about that much space (illustrating) between the bottom of the pulley shaft and the sawdust; maybe a little bit more or a little bit less.

"Q. The saw was still turning towards him, wasn't it? A. Yes, sir; but it wasn't up in front where he was. It might have been back to the end.

"Q. Where was it? Did he have the saw back at the end, fixed back there? A. Maybe not fixed back there. It might have been maybe in the middle. I don't remember just where it was, but I know he wasn't pulling it to him. He was pushing the wood against the saw.

"Q. Now, you say the sawdust had piled up in that pit so that it was about four inches below the pulley? A. Somewhere around there.

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