Watson v. Carthage Marble & White Lime Co.

• Citation: 290 S.W. 649
• Decision Date: 07 January 1927
• Docket Number: No. 3756.,3756.
• Court: Court of Appeal of Missouri (US)
• Parties: WATSON v. CARTHAGE MARBLE & WHITE LIME CO.

290 S.W. 649

WATSON v. CARTHAGE MARBLE & WHITE LIME CO.

No. 3756.

Springfield Court of Appeals. Missouri.

January 7, 1927.

Rehearing Denied February 9, 1927.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Action by A. W. Watson against the Carthage Marble & White Lime Company. Judgment for plaintiff, and defendant appeals. Reversed.

Howard Gray, of Carthage, for appellant.

J. D. Harris, of Carthage, for respondent.

COX, P. J.

This is an action for damages for personal injury. The cause was tried to a jury, and plaintiff recovered, and defendant appealed.

The negligence relied upon is that the defendant was remiss in its duty to exercise ordinary care to furnish plaintiff a reasonably safe key used to tighten a saw operated by defendant. The answer was a general denial.

Defendant was engaged in removing stone from a quarry to its mill, where the stone was cut or sawed into the dimensions desired. The blocks of stone were often 10 or 12 feet long, from 5 to 7 feet wide, and 5 or 6 feet in thickness. The entire block was run in the mill on a truck and sawed while on the truck. Long thin blades of steel, called saws, but without teeth, were used to cut the stone, and several saws were used at the same time upon the same stone. The saws were about 4½ inches wide, three-sixteenths of an inch in thickness, and from 14½ to 16½ feet in length. These saws were operated by machinery, and with the aid of sand and water cut the stone. The saws had a hole in each end, and a piece of steel called a dog was bolted to the ends of the saws and extended back 2 or 3 feet, passing through what is called channel bars. In the end that passed through the channel bar there was an opening similar to the socket or eye of an ordinary axe. The dogs extended through the channel bars so that a part of the opening extended beyond the channel bar, and wedge-shaped steel keys were inserted into the dog opening beyond the channel bar, and, when driven down, these keys would draw the dog further out and thereby tighten the saws.

The foreman put the keys in the dog opening at one end, and plaintiff, who was first helper, put them in at the other, and, upon signal from the foreman, plaintiff would drive in the key at his end. These keys were made of flat steel, and were wedgeshaped as stated, and by use would become worn so that the edges thereof at the outer end of the dog would become somewhat concave with the slope, becoming more abrupt or blunt toward the upper end; that is, by use there would develop a kind of a shoulder on the outer edge and up towards the top of the key. There were a large number of keys in the mill, and an employee using them had access to all keys placed at the end or side of the machine where he was working, and there was, so far as appears, always a large number from which to select. When a key was worn too much to be proper for use, it was taken to the shop and repaired.

At the time of plaintiff's injury, he was working at one end of the saws as first helper, and his foreman, George Robertson, was at the other end. Plaintiff placed a key in the opening in the dog, and, upon receiving a signal from his foreman, began to drive said key with a hammer, and while so driving down this key it flew out and struck him in the eye, inflicting the injury of which he complains.

Defendant assigns error (1) on the refusal of its request for a directed verdict at the close of the whole case; (2) on the instructions; and (3) on the admission of evidence. We only deem it necessary to notice the first assignment.

Plaintiff contends that defendant has waived the right to complain respecting the refusal of its instruction in the nature of a demurrer, because it requested and was given instructions submitting the issues after its general demurrer had been refused. There is only one charge of negligence here, and what we said respecting this question in Mills v. Steadley & Co. (Mo. App.) 279 S. W. 160, is applicable here, and it will not be necessary to further consider the question. Defendant has not waived the right to complain of the refusal of its demurrer.

In considering the demurrer to the testimony of plaintiff, we must disregard the evidence offered by defendant, unless it strengthens the evidence of plaintiff. Plaintiff's case rests upon his own testimony, which was substantially as follows:

"Mr. Robertson was the mill man, and my duties were to assist him in setting the gang. * * * When he is ready he taps on the channel head for me to drive the key down. The signal is for me to drive the key down. As I was doing so, the key jumped out and struck me in the eye. * * * The key I was using has got a hump on it. It was too small and too tapering. This key had just been used in setting another gang, and it had not jumped out, and I had orders to drive it down again. * * * The bowed condition in the key is caused by driving it down. It has become worn by driving it down so many times. It has tightened the saws until it has become worn, and from its appearance it has been in use a good many years. When the foreman gave me the signal to drive, I hit it, and it flew out and struck me on the eyeball, and cut the lid in two places. * * * I struck the pin with a hammer in the customary way."

Cross-examination:

"There were six gangs in the mill, and each one had a double end to it just like the one where I was working, and there was a bunch of keys on either end of each gang. There were about eight keys on the saw where I was working. There were eight saws at my end and five keys and eight dog heads. * * * I never took any keys to the blacksmith shop. That was the duty of the second helper, Mr. Hatcher. * * * I don't recall taking keys to the blacksmith shop to be repaired and I don't know whether it was my duty or not, but I don't think it was. I had to drive the keys the way I did and to get over it to drive it and to tighten it. * * * I had seen the keys there from April to December, and had used a greater part of them. While I was foreman doing the work, I used the same pins as when I was only assistant foreman, because they were the only ones that were in the mill to use. I had not only worked in that mill but other mills, and had used keys in other mills. I had been second helper and worked up to first helper. By second helper I meant I was first assistant and Mr. Hatcher was second assistant. He got his instructions from Mr. Robertson too. When Mr. Robertson was not there I took his place part of the time; I was superintendent— that is, I was foreman myself and had to do the work that Mr. Robertson was doing, and this other boy would help me. When we got ready to set a gang, we got our dogs and keys together. They had pretty nearly every kind of key, some short ones, some thin long ones, some narrow ones, some crooked ones, and some of them straight. * * * There may have been 100 keys there, and they had all kinds of keys. I served as head helper or foreman over the second helper, not as a daily or regular matter, but sometimes an hour or a few hours to set a gang or something like that."

Redirect:

"My equipment with respect to dogs and keys just stood up on the gang. I did not go to get others."

Being recalled at the close of his case, plaintiff testified:

"The key I was hurt with and marked `Exhibit A' had been on either a week or ten days or maybe longer, and I had sawed out four or live blocks with it, and it takes from 12 to 24 hours to saw a block, and I had to redrive it on each one of those blocks, but it had never jumped out on any other occasion. I had seen the other employees in the mill drive this same key in on those blocks. I had seen Mr. Hatcher, who helped me set those gangs, and also a man by the name of Runnels. * * * I put the key in the usual way and was driving it down. We had been using it all the while. It did not look as though but what it would drive the same as it had been doing."

Cross-examination:

"They had a man there for the sole purpose of fixing keys when we boys wanted them fixed. When Mr. Robertson was busy, I took his place, and they had a man up there who was getting keys, and if they were on the dog raising them up. and if they were not on the dog to get them, and I would signal him to drive."

The testimony of plaintiff discloses the following facts: That there were a great number of keys there to which plaintiff had access, and he had, used a great many of them. This shows that plaintiff was not confined to the use of the key that jumped out and injured him, but he, without any orders from the foreman, could...