Yates v. House Wrecking Co.

• Decision Date: 21 May 1917
• Docket Number: No. 12476.,12476.
• Parties: YATES v. HOUSE WRECKING CO.
• Court: Missouri Court of Appeals

195 S.W. 549

YATES v. HOUSE WRECKING CO.

No. 12476.

Kansas City Court of Appeals. Missouri.

May 21, 1917.

Rehearing Denied June 12, 1917.

Appeal from Circuit Court, Jackson County; C. A. Burney, Judge.

"Not to be officially published."

Action by Homer C. Yates against the House Wrecking Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank M. Lowe and Ira B. Burns, both of Kansas City, for appellant. Brewster, Kelly, Brewster & Buchholz, and Ed E. Yates, all of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injury received while in defendant's employment. He recovered judgment in the circuit court.

Defendant operated a planing mill, and as a part of the machinery thereof was a circular ripsaw set in a framework and table. The saw was set in a slot in the top of the table and extended both above and below. Connected with the saw, and as a part of the apparatus for sawing lumber, was what is known as a "feeder," which was operated so as to carry boards to the saw and push them through. The saw and the feeder were operated by shafting and belts which were below the table, and the feeder belt wheel was close to the saw. The saw was not guarded, which, as plaintiff insists, was a violation of section 7828, R. S. 1909, which reads as follows:

"The belting, shafting, machines, machinery, gearing and drums, in all manufacturing, mechanical and other establishments in this state, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments."

As defendant contends no case was made for the jury, we will ascertain what the evidence in plaintiff's behalf tended to prove. It appears that plaintiff was 42 years of age and a bookkeeper by profession, but had for nine months been engaged in operating the saw for defendant, and his work was to select the boards, place them on the feeder on one side or end of the table, and then, as a board was carried through and ripped in two, to go to the other side and take the boards off and place them on a pile. The same power operated the saw and the feeder, so that when the saw was stopped that stopped the feeder. When plaintiff began work, the feeder was in disuse, making it necessary for the operator to push the board into the saw; but some time before he was hurt the manager of the defendant directed the foreman to put the feeder in use, and this was done. He also directed that the saw below the top of the table be guarded, but this was not done.

It appears that the belt frequently came off the feeder pulley under the table, and it would be necessary that it be put on again. The foreman did this for a time, but finally directed plaintiff to do it himself, which he afterwards continued to do until he was hurt. It was shown that the belt was tight and could not well be gotten onto the pulley while running, and the foreman had shown plaintiff how to get it on while in motion. Defendant had the table and saw in the trial court, and plaintiff demonstrated how he manipulated the belt with his hand. He testified that at the time he was hurt he was endeavoring to adjust the feeder belt, with his right hand, as usual and as he had been shown by the foreman, when something caught his hand and threw it against the saw, inflicting the injury for which he sues. There was abundant testimony tending to prove that the saw could well have been guarded.

There was evidence in defendant's behalf tending to show that plaintiff had ample facility for stopping the saw "by pulling a string which hung from the ceiling"; and that, though he did not stop it in that way, he could have adjusted the belt while running by using a stick which hung from a post near the table and was kept there for the purpose of putting the belt on.

But, as we have stated, the evidence in plaintiff's behalf tended to show that he adjusted the belt in the manner defendant's foreman adjusted it and in the manner such foreman showed him it should be adjusted. This was not negligence in plaintiff, as a matter of law, and so we decided in Lindelof v. Hoagland Wagon Co., 186 S. W. 537, a case presenting facts more favorable to defendant than this one does. In addition to that case, we have been cited to the late case in the St. Louis Court of Appeals, Daniels v. Goeke, 191 Mo. App. 1, 176 S. W. 301, which presents the same question, and it is decided in the same way.

But it is claimed that, as the saw extended under the table and there did the injury, the statute as to guards did not apply. We do not see any reason in distinguishing between the upper and lower part of the table, on, and under, which the dangerous machinery was located. The statute makes none, and we should not interpolate one. The question, primarily, is not at what particular place is the machinery located, but rather is, where is it located with reference to the servant's ordinary duties. If, in the performance of such duties, he must go or reach in dangerous proximity to the machinery, it should be "securely guarded when possible." We have already shown that plaintiff was employed — in effect, he was directed — to adjust the belt under the table near to the unguarded saw. The facts of this case, as the evidence in plaintiff's behalf tends to show them, as applied to the statute, leave the authorities cited by defendant without application. The question whether it could and should be guarded, in the circumstances shown, was one for the jury. Daniels v. Goeke, supra. The object of the statute and its practical application to the affairs of those operating the machinery therein mentioned has been so thoroughly considered by the courts that we only need cite a few of the cases: Simpson v. Iron Works, 249 Mo. 376, 155 S. W. 810; Huss v. Bakery Co., 210 Mo. 44, 108 S. W. 63; Lore v. Mfg. Co., 160 Mo. 608, 61 S. W. 678; Hughes v. Contracting Co., 188 Mo. App. 549, 176 S. W. 534; Millsap v. Beggs, 122 Mo. App. 1, 97 S. W. 956; Holt v. Shoe Co., 186 Mo. App. 83, 171 S. W. 673.

Objection was made to the first and principal instruction for plaintiff. We think it is without fault, and that the single objection made to it is hypercritical. The...