125 Mo. App. 357 | Mo. Ct. App. | 1907
This is a suit to recover damages alleged to have been received by plaintiff on account of the negligence of the defendant company. The facts are that the plaintiff, a boy at that time seventeen years of age, was injured while operating a circular saw. His employment consisted in sawing off the horns and sawing the jaws of animals that had been slaughtered in defendant’s packing establishment. The saw was circular, sixteen inches in diameter, was attached to a shaft below a table or platform and projected up a sufficient distance through a groove or slit in the table ábout one-half inch wide so that the work could be accomplished upon the upper surface of the table. The manner of performing the work was for the operator
The plaintiff admitted that he knew of the condition of the saw and the table in question, and that he was aware that his work was dangerous and that he was liable to get hurt, but that he endeavored to avoid the danger by being careful at his work. Other employees of the company had operated the saw in the condition described, but no one of them had been hurt in so doing. There was evidence tending to show that the saw could have been so secured that it would not have “wabbled.” Notwithstanding the plaintiff’s youth, he was familiar with the condition of the appliances he was operating,
Defendant contends that plaintiff should have been nonsuited for the following reasons: First, Because there was no evidence that the saw oscillated. Second, Because the physical facts show that plaintiff’s injury was an accident or was caused by his own negligence. Third, Because plaintiff assumed the risk. The statement of the facts of the case is an answer to the first .contention. As to the second, the evidence tends to show that plaintiff was at the time of his injury in the exercise of due care, which 'must be accepted as conclusive unless the physical facts show that the injury could not have been inflicted unless he was in fact negligent.
If the injury was the result of an accident or was one incident to the business and likely to occur, however the work was conducted, the defendant was not liable. An accident, as defined in Webster’s Dictionary and as generally accepted by the courts, means, “A coming or falling; an event that takes place without one’s foresight or expectation; an event that proceeds from an unknown cause, and therefore not expected; chance, casualty, contingency.” [Henry v. Railroad, 113 Mo. 525.] In the case at bar, the cause of the injury was the coming of plaintiff’s hand in contact with the revolving saw and could have been prevented by the exercise of foresight and due care on the part of plaintiff or if the appliance had been kept in proper repair and good working condition. Witnesses stated that it was safe to operate the saw by using proper care. They are
It is contended, however, that, notwithstanding plaintiff’s testimony that he was without fault, the physical facts show that the defects complained of did not produce the injury. It is insisted that as the groove or slit in the table through which the saw worked was only one-half inch wide and the swaying of the saw did not reach the sides of the groove, the line in which it revolved did not vary more than one-fourth of an inch from a true line; the wabbling was so slight that it could not have been the cause of the injury in the ordinary and proper operation of the appliance. But when we take into consideration the method pursued in the work, we are not persuaded that defendant’s position is well founded. The operation was one, as we view it, in which the workman would be compelled in defense of his own safety to gauge with precision the point of the horn on which he would place his hand to hold it while the saw would sever it from the head. He would have to make due allowance for space sufficient between his hold on the horn and the head for the saw to do its work. If the saw worked true, we presume, from the testimony, a competent workman would know just how he could in every instance manipulate the horn with reference to the saw to do it properly. If the saw did not work regularly, but varied from a true line more or less, as shown, the workman would be placed at a disadvantage and would be liable to get hurt because of his inability to gauge space, as indicated, with sufficient accuracy. And we can see, taking these facts into consideration, -that it is reasonable to conclude that the depression in the table also might have con
However, it is insisted that as plaintiff was aware of the defects he assumed the risks. It is well-established law in this State that the servant does not assume the risks of the master’s negligence. [Shore v. Bridge Co., 111 Mo. App. 278; Curtis v. McNair, 173 Mo. 278.] The law is stated thus: “The servant does not assume the risk of the master’s negligence. He simply assumes the risk of the dangers incident to his employment. If the master furnishes the servant implements and he uses them, knowing them to be unsafe, a question of contributory negligence arises, but not' of assumption of risk.” [Cole v. Transit Co., 183 Mo. 81.]
But, was the plaintiff guilty of contributory negligence in using the saw, knowing its defects?. We think not. The testimony was in accord that the danger was not so glaring as to deter a reasonably prudent man in the exercise of ordinary care from engaging in the work. [Cole v. Transit Co., supra.] This question has been so often decided that it is not necessary to cite other cases.
Objection is made to instruction number one, given for plaintiff, on the ground that it assumes that plaintiff was exercising ordinary care at the time he was injured. We think this is a misapprehension of the meaning of the instruction. The language criticized is: “And you further believe from the evidence that plaintiff while exercising ordinary care was injured on account of the conditions stated in this instruction, if you believe he was injured, then you will return a verdict for plaintiff.” A fair construction of the meaning of
A further objection to the instruction is that the court declared as a matter of law that the defendant was guilty of negligence, if the saw was so loose that in revolving it varied. The defendant is not accurate in stating the legal effect of the instruction. It read that, if “the saw upon which plaintiff was required to work was loose so that it varied or wabbled, and you further believe from the evidence that plaintiff while exercising ordinary care was injured on account of the condition stated in this instruction . . . then your verdict will be for plaintiff.” It was not an abstract statement, as a matter of law, that the working condition of the saw was negligence, but an application of the law to the facts: that is, if the saw varied and wabbled and the plaintiff while exercising due care was injured, then he was entitled to recover. It is always the duty of the court to declare the law applicable to the facts. If the defect in the appliance was such as to cause injury while being operated in a careful manner, then as a matter of law defendant was guilty of negligence. But it is argued that “the master may have fully performed his legal duty,” and that “he may have inspected as often as ordinary care required and found the appliance . . . to be reasonably safe.” That is true, but such a showing would be a matter of defense and would entitle defendant to a verdict, and.it would be a question for the jury. Plaintiff was not required to include independent matters in his instruction going to exonerate defendant' from the charge of negligence.
Among others, defendant asked the court to give the following instruction: “If you find from the evidence that the saw in question was securely fastened to its shaft, and the shaft was securely adjusted so as to prevent lateral motion, you will return a verdict for defendant.” The court refused the instruction as
Other errors assigned are not well taken. Eeversed and remanded.