33 P. 590 | Ariz. | 1893
Appellee brought suit in the district court, Coconino County, against appellant, to recover damages for personal injuries sustained by him while in the employ of appellant, which said injuries arc alleged to have been caused by the negligence of the latter'.. There was a verdict and judgment for appellee for thirty-five hundred dollars, and the appellant brings this appeal from said judgment, and from the order overruling the motion for a new trial. It is alleged in the complaint, in substance, that the Arizona Lumber and Timber Company, appellant, was on the eighth day of October, 1890, the owner of and engaged in operating a saw and planing mill in said county; that a part of the machinery in use in said mill on said date was a certain circular saw used for ripping boards, commonly called a “resaw”; that this saw was unsafe, defective, unguarded, and dangerous, and known to be such by appellant; that prior to said date appellee had been employed by appellant to work in and about said mill as a common or unskilled laborer; that on said date appellee, by direction of appellant, was engaged in assisting in the operation of said circular saw, his immediate duty being to place lumber in position to be cut by said saw; that at the time appellee was inesperienced in the use of said saw and the machinery connected therewith, and ignorant of the dangerous character and condition thereof; that all this
It is shown hy the evidence that at the time appellee received the injuries complained of he was in the employ of the appellant, at work in the planing-mill, which work consisted in “feeding lumber,” as it is called, to a machine known as a “resaw.” This machine is intended to split hoards into thin pieces, and consists of a circular saw about forty-one inches in diameter, set in an iron frame. When operated, this saw makes from one thousand to one thousand two hundred revolutions per minute. In front of this saw are placed a double set of upright rollers, which revolve inwardly and towards the saw. In front of these is a horizontal roller, which revolves in the direction of the upright rollers. On each side of this saw, and a little above its axle, is a slide or table, which carries the boards as they are sawed, and upon which they rest until they are taken off by the attendant behind the machine. The manner of operating the machine is, in general, this: The feeder standing in front of the saw places the end of the piece of lumber to be split with the edge upon the horizontal roller, when it is caught by the upright rollers, and drawn by them towards the saw. It is intended that hoards to he split shall enter the rollers in a horizontal position, on a level with the top of the tables on each side of the saw. When the board is sawed, the two pieces thus made are taken off from behind, to make room for the next. This accident was shown to have occurred in this way: Appellee, in feeding the machine, placed a piece of lumber between the rollers with the far end about four or five inches lower than the end towards the saw; that when
The principal assignment of error relied upon by the appellant is, that the evidence is clearly insufficient to establish any negligence on its part for which appellee can recover. Counsel for appellant, in their brief, discuss the ease upon the theory that, unless the evidence discloses that appellant was negligent in allowing appellee, without previous warning, to work with a machine so defective in its structure or so incomplete in the safeguards with which it should have been supplied as to render it unsafe and dangerous there can be no recovery in this action. Testimony was introduced by appellee and counter testimony by appellant as to whether or not the resaw was defective, in not having some sort of a guard to protect the feeder from pieces of timber which might be thrown off when running. This question, however, was virtually taken from the jury by the court in its instruction to the effect that the absence of such a guard, if a defect, was such a visible, open, and apparent one that appellee in consenting to operate the saw was to be presumed to have had a knowledge of such defect and to have assumed the dangers incident thereto. The pleadings and evidence present, however, an entirely different question, which we will proceed to consider.
It is, we think, apparent from the evidence that the immediate cause of the accident to appellee was his want of skill in feeding the saw. Two or three days prior to the accident appellee had been set at this work .by direction of the foreman of the mill. He testified—a ad his testimony upon this point is uncontradicted—that at the time he had but little knowledge of the machine, and no experience in the kind of work required in its operation. He had been prior to this time employed by appellant as a common laborer about the lumber yard and mill, and was not a skilled workman. It also appears that he was not warned as to the dangers inci
There was a large number of assignments of error made by appellant .based upon the rulings of the court during the trial relative to the introduction and exclusion of evidence, but as none of them were mention., d in the motion for a new trial we cannot consider them. TV .* have carefully considered the instructions, and find that app Llant has not just reason to complain of them. They fully si ate the law govérning the case, and if some of them be subject to criticism it is not for the reason that they contain harmful error. We think the judgment should be affirmed, and it is so ordered.
Gooding, C. J., and Kibbey, J., concur.