Woehner v. F.C. Riddle & Bro. Casket Co.

• Decision Date: 06 June 1917
• Docket Number: No. 14712.,14712.
• Court: Missouri Court of Appeals
• Parties: WOEHNER v. F. C. RIDDLE & BRO. CASKET CO.

196 S.W. 381

WOEHNER v. F. C. RIDDLE & BRO. CASKET CO.

No. 14712.

St. Louis Court of Appeals. Missouri.

June 6, 1917.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by August Woehner against the F. C. Riddle & Bro. Casket Company. Judgment for plaintiff, and defendant appeals. Affirmed.

S. Thorne Able, of St. Louis, for appellant. John A. Dowdall and Jesse L. England, both of St. Louis, for respondent.

BECKER, J.

This is an action to recover damages for personal injuries sustained by plaintiff while operating a ripsaw, at a time when he was in the defendant's employ. From a judgment in favor of the plaintiff and against the defendant for $950, the defendant appeals.

The petition charges: That plaintiff was employed by the defendant company, a Missouri corporation, manufacturers of caskets. His work was that of running a ripsaw and a miter saw. That on the 14th day of January, 1914, he was working at a ripsaw; the moving table or sliding board in connection therewith, which is a part of the machine, together with the framework and grooves in which is was moved, had become worn, loose, and so unstable that by reason thereof plaintiff had to so hold the lumber being sawed that his hands were brought in close contact with the revolving saw, and that while in the exercise of due care and caution for his own safety, by reason of the said defects, plaintiff's left hand came in contact with the revolving saw and was badly injured. The answer was a general denial, with a further answer that plaintiff's injuries, if any, were due to his own carelessness and negligence, and a further answer, in which defendant sets up a release of the cause of action sued upon. The reply pleads matter in avoidance of the alleged release.

Plaintiff testified: That he was 22 years of age, and at the time of the accident had been in the employ of the company for a period of approximately six months. That on the day in question he was running a machine known as a "ripper," which is a machine for revolving a circular saw at a high rate of speed by mechanical power and having in connection therewith a sliding table or sliding board upon which the lumber intended to be sawed was placed, and this sliding table or board moved toward and against the saw and brought the lumber in contact with it. The table or sliding board of the "ripper" was cracked, and had been forced together with nails. That by reason of it being cracked, the slide was wobbly, and that in order to saw the boards straight, it was necessary, because of the said condition of the sliding table, to hold the boards against the saw with his hands; otherwise the board would be sawed crooked and be unfit for use. That while so engaged in operating the machine and shoving the boards against the saw to prevent the slide from wobbling and in order that they would be sawed straight, in some manner his hand was caught by the saw and badly cut. The plaintiff testified that he had spoken to the foreman about the condition of the machine some ten days before. That the foreman had promised to get some hard wood lumber and fix it; that he had again spoken to the foreman about three days before the injury, and told him to have it fixed before any one was injured. Plaintiff further testified that the defendant did not provide a guard for this particular machine.

Plaintiff testified that immediately after his injuries had been bound up at the defendant's plant he was sent to the hospital, where he had treatments for several days, and thereafter went to his family physician, who made an examination of his injuries and told plaintiff that it would be necessary for him to be sent to the hospital, and that an operation would probably be necessary, and that plaintiff would have to raise the necessary money to pay for the expenses thereof. Plaintiff testified that on the doctor's advice he went to the defendant company and asked them if they would bear the hospital expenses; that the defendant gave him a letter and requested him to take the same to an attorney in the Pierce Building; that this attorney offered plaintiff various sums, which plaintiff refused to accept as not being sufficient to cover the doctor's bill, but finally, at the suggestion of the attorney, plaintiff consulted his physician as to the amount of money that would be required for the purpose, and was told it would require $50; that upon his reporting this to the attorney, plaintiff was finally given a check for $50, which the attorney made payable to plaintiff, but wrote an indorsement on the back thereof, making the check payable to the doctor, the plaintiff subscribing his name under the indorsement.

Plaintiff testified that at the time he was given the check he signed his name to something which he thought was a receipt for the amount for the doctor's bill; that this paper was not read to him; that nothing was said about the $50 being in settlement of the case with the defendant company; and that he (plaintiff) did not then understand that he was making a settlement with the company. Plaintiff further testified that he had gone to school from the time he was 6 years old until he was 11, during which period he had attended approximately 4 school years, but that he was unable to read anything but the simplest words, and was unable to read a newspaper, and that he did not see the writing on the paper that he signed. Some four months after the injury, and before he filed the suit against the defendant company, he accompanied his attorney to the defendant's office and made them a tender of $50, which tender was refused. Dr. Sutter testified for plaintiff as to the nature and extent of his injuries, and in his opinion the use of the thumb and two small fingers of the left hand will always be impaired.

On behalf of the defendant, Edward Sheehan, the foreman of the defendant company, testified: That he had employed the plaintiff as an experienced saw hand. That he had particularly instructed the plaintiff that when using the ripping machine to use a saw guard which at all times was hanging within arm's length of the machine. That in addition to this there were two signs in front of the operator, one of which read: "Use your saw guard when the saw is in operation." That within one hour after the plaintiff had met with his injury he examined the saw and table at which the plaintiff met his injury, and found an inch and one-half strip of wood nailed to the slide, which the plaintiff later admitted to him he had nailed onto the slide because it was a little bit loose. Sheehan further testified: That the effect of nailing this strip beneath the outer side of the sliding board was to prevent the slide from working freely, and had a tendency to bind the slide to the table. That he tried the sliding board, and when it got halfway through the table, the piece which the plaintiff had nailed onto the slide would not allow it to be pushed up any farther. In other words, this strip prevented it from sliding freely, making it necessary for the operator to use more force in pushing the slide than would otherwise be required, and that just as the force or pressure required on the part of the operator to push the slide was increased, just that much more were the chances of the operator's hand slipping increased. That the witness was unaware until after the injury to plaintiff that plaintiff had nailed this strip to the slide. That without this strip the slide was in good working order. That there was a split on the edge of the sliding board. That this split was not over two inches, and a little V-shaped piece was out of the slide. That the split and the small piece that was out of the board did not affect the slide board working in the groove at all, and did not in any manner impair its usefulness. That some four or five months after the accident the sliding board had been renewed on account of rough edges; that the witness had run the machine with the same sliding board many times after the accident and before it had been repaired, and that the slide did not wobble when he operated it. That all sliding boards had to have a little play or they were not workable, and if the slide is tight, it is necessary to remove the slide and adjust the "gib" so that it would run along easily.

Charles A. Harper, superintendent of the defendant company, and Frank M. Goodhart, an employé, testified that each had examined the machine the morning after the accident, and that they did not find any defect either in the saw or the saw table; that they had found a strip nailed to the slide which kept it from working freely, and that after the slide got probably halfway it would begin to bind, and you would have to exert yourself to...