193 Mo. 715 | Mo. | 1906
— This is an action for ten thous- and dollars damages for personal injuries received by the plaintiff on the 31st of December, 1901, while in the employ of the defendant as a helper in operating a planer used by the defendant in manufacturing boxes.
THE ISSUES.
The petition after alleging the corporate capacity of the defendant and the fact that the plaintiff was engaged as a helper in operating a planer in the defendant’s factory charges: “That the said planer was defective and out of repair in this, to-wit: the shield which acts as a protection to the operator and helper was broken off and had been off for at least two' months prior thereto; that said machine was so defectively constructed and out of repair that it would clog up when used in planing short, thin lumber, which condition of said machinery was unknown to plaintiff; ’ ’ that on the day of the accident by reason of its defective condition, the planer became clogged up with the short, thin lumber, and it was the duty of the plaintiff, in the exercise of his employment, to clean out the same; that in doing so plaintiff, in the exercise of ordinary care and with no fault on his part, took hold of a piece of lumber, and by reason of the defective condition of said planer and the absence of the aforesaid shield, plaintiff’s left hand came in contact with the said planer, and was greatly injured.
The negligence charged in the petition is: “First, that defendant was careless and negligent in furnishing plaintiff with machinery which was, on December 31, 1901, and had been for a long time prior thereto, in a dangerous and defective condition, as hereinbefore stated, which defects were known, or by the exercise of ordinary care might have been known, to defendant. Second, that defendant was negligent and careless in not warning plaintiff of the danger in connection with said work and said defective machine, knowing plaintiff to be inexperienced in such work, and that plaintiff did
The answer is a general denial, coupled with a plea of contributory negligence and assumption of risks. The reply is a general denial.
The case made is this:
About the 1st of December, 1901, the plaintiff entered into the employment of the defendant and worked in the yard handling lumber. Two or three days before the date of the accident he was assigned to duty as helper to the operator who was running' the planer, his duties being to carry off the lumber from the machine and to help clean it out when it got clogged. The planer could be so adjusted as to plane lumber varying in thickness from three-eighths of an inch to sis inches. During the time the plaintiff was engaged as such helper the machine clogged quite frequently. Two or three times the plaintiff and the operator stopped the planer to clean it out. At other times they cleaned it while it was running. No instructions had been given to the> plaintiff or the operator as to stopping or not stopping the machine when unclogging or cleaning it. That was a matter that was left entirely to the discretion and judgment of the operators and they stopped it or not as they chose and as they deemed best. Plaintiff thus describes the planer, and for the purposes of this case the description will be accepted as correct: “The planer was about hip high. At the front of the planer there wás a pair of rollers, one above the other, to lift the boards into the machine. A little further back was another pair of rollers to start the boards under the'knives —then the knives. There was a space of eighteen inch
Over the objection of the defendant the plaintiff was permitted to testify that the defendant did not warn him of the danger to be incurred by running or helping to operate the machine. There was some testimony to the effect that the lever did not always stop the running of the machine promptly, but no evidence that there was any other method of stopping the planer without stopping the machinery, and the undisputed evidence was that when the planer got too badly choked it was stopped and an attempt was made to clean it; and the evidence is further undisputed that, although the lever did not always stop the running of the planer immediately upon being applied and that it sometimes would make two or three revolutions before it stopped, still the evidence is uneontradicted that by the application of the lever and the throwing of the belt the planer would stop. Inasmuch as counsel differ as to whether the plaintiff took hold of the end of the board or the side of the board near the end, it is necessary to state fully all that is disclosed by the evidence in this regard. The.testimony of the plaintiff was as follows: “I had reached over and took hold of this board to pull it out and just as I took hold of the board and started to raise
It is contended for the plaintiff that the evidence discloses that the plaintiff in putting his hand into the machine as aforesaid pursued the usual and customary manner of unclogging the machine that obtained in the defendant’s factory. The evidence in reference to the manner in which the machine had previously been unclogged, as disclosed by the record, was as follows: The plaintiff testified: “Q. Now, you tell us you had been doing this before? A. Yes, sir. Q. How long had you been doing it? A. Two or three days.” Trewell testified: “Q. Was it customary there to clean out the planer when it was running?” This was objected to. The objection was not passed upon and the question was not answered. He was then asked: “Q. What did you do about cleaning it out when running?” This was objected to and the court said: “You can ask him whether it was running or standing still.” The plaintiff then asked: “Q. You say it was running when you cleaned it out? A. Yes, sir. Q. Every time that morning ? A. I think so, but I do not remember whether I stopped it at any time or not, but I do not think I did.” He further testified: “Q. Did you see Smith take hold of this piece of board that was stuck in the machine? A. Yes, sir. Q. Did you have it all cleaned out except that? A. I think so. We thought it was all cleaned out when he found this board. Q. And that piece when he took hold of it drew his hand into the rollers? A. Yes, sir. Q. How long had you been cleaning it, this machine, in that way? A.. Ever since
Kline, a witness for plaintiff, testified as follows: ‘ ‘ Q. When it clogged up what would you do ? A. Clean it out — take our hands and clean it out. Q. I will ask you what you did. when you found it clogged up? A. Why, we cleaned it out. Q. Tell how you cleaned it out. A. With our hands — pulled the sticks out. Q. Was the machine at these times running or stopped? A. Well, it was running most of the time.”
Trewell testified on cross-examination as follows: “Q. Had you been in the habit during the time you were operating this machine of putting in your hand and pulling out the choke-up ? A. Yes, sir. Q. That had been your habit and practice always? A. Yes, sir.”
At the close of plaintiff’s case and again at the close of the whole case, the defendant demurred to the evidence. The court overruled the demurrer, and the defendant excepted, and that ruling is now assigned as the chief error.
At the request of the plaintiff the court instructed tlie jury that if the machine was defectively constructed and out of repair and dangerous, in that, it would clog up and require cleaning out, and that in the absence of the shield spoken of in the evidence it was liable to catch the hand of the person so cleaning it out and injure him, and that the defendant knew, or by the exercise of ordinary care could have known, of such defect and danger, then the plaintiff was entitled to recover unless he was himself guilty of negligence, or that he assumed the risk of doing the work as defined in the other in
Although the petition assigned as negligence the inexperience of the plaintiff and the failure of the defendant to warn the plaintiff of the dangers to be apprehended, and the failure to. instruct him how to operate the planer, and although over the defendant’s objection the plaintiff was permitted to show that the defendant had not instructed the plaintiff as aforesaid, the plaintiff did not ask any instruction and the court did not instruct the jury on this feature of the case. As be-. fore stated, the plaintiff recovered a judgment -for $7,000, and, after proper steps, the defendant appealed.
I.
The second ground of negligence assigned by the plaintiff is the failure of the defendant to notify the plaintiff of the danger incident to the operation of the planer. As hereinbefore noted, this feature of the case was not submitted to the jury at all, and except for the
The crankiness of the machine and its propensity to suddenly shoot a plank toward the back rollers is not charged in the petition as a defect in the machine, nor was it made an issue in the pleading. The sole defect alleged in the petition was the absence of the shield aforesaid. The case was put to the jury by the instructions of the plaintiff solely upon, the ground that the defect in the machinery consisted in the fact that it would clog up and required cleaning and that in the absence of the shield it was liable to catch the hand of a person and injure him. The argument now made that the crankiness of the machine is the proximate cause, or one of the proximate causes, of the injury, cannot be allowed to avail the plaintiff in this court, for neither by petition nor by instruction was any such theory submitted to or tried in the lower court. The same is true as to the second ground of negligence alleged in the petition, for there the warning, which it was alleged the defendant failed to give the plaintiff, referred solely to “said defective machine,” and the petition contained no averment of any other defect than the absence of the shield. This contention, therefore, need not be further referred to, and the failure to warn the plaintiff need only be considered with reference to the dangers to be apprehended from the failure to have the shield
The fact that other operatives and the plaintiff had
What is there said applies with full force to the case at bar; the only difference between the two’ cases being that in the one instance the man had had four months experience, while in the case at bar he had only three days experience, which considering the obvious character of the danger to be incurred and the fact that such danger was imminent, makes the difference in the experience of the operatives in the two' cases wholly immaterial.
The case at bar also falls within the principles announced in George v. Manufacturing Co., 159 Mo. 333, where it was said: ‘ ‘ The machine was in perfect running order; reasonably safe of its character, for the purposes for which it was being used. The plaintiff was familiar with its construction and operation. He was furnished a safe place for the discharge of ‘the duties of his employment in connection with the machine. In the discharge of those duties with ordinary care it at no time became necessary that his arm should be
And in Nugent v. Milling Co., 131 Mo. l. c. 256, a case very analogous to the case at bar, it was held that the failure of a master to instruct his servant as to the danger of a machine which was obvious does not constitute negligence, the court saying: “He knew as well as any one connected with the mill that if his hands came in contact with the revolving cylinders they would be crushed to pieces, and it is a matter of no concern that he was not so informed by the manager of defendant’s mill. Whatever there was ,of danger or risk he could see and appreciate as well as any one, and as it was known to him he was as legally responsible for his own protection as was the foreman in charge of the mill for his protection — he needed no special instruction as to the danger.”
Plaintiff admits that he knew if his hand came in contact with the rollers it would be injured. His only excuse for putting his hand into that small space between the presser and the back rollers is that he did not intend to put his hand where it would come in contact with the back rollers. But any man of ordinary intelligence would know that if he did so, the danger of injury was imminent, for the danger was obvious. Such an act itself suggests the inevitable consequences. If he took hold of the end of the board and the board start
This, therefore, is not a case where the master can be adjudged guilty of negligence in not having warned the servant of the dangers to be incurred, for such dangers were perfectly obvious and imminent.
II.
The plaintiff says he intended to take hold of the plank and lift it out of the planer and not to pull it through the back rollers. How this could have been accomplished surpasses comprehension. The plank was three-eighths of an inch in thickness and three and one-half to four feet long. The distance the plank was below the top of the planer does not accurately appear from the evidence, but at any rate it was lower than the top of the planer, for it was intended to pass under the presser and between the back rollers. Upon the principles of applied mechanics it is impossible to conceive
■ III.
The evidence clearly shows that the plaintiff could have stopped the planer by merely throwing the lever, which was provided for that purpose and was easily within reach, and could have thus safely unclogged or cleaned the machine while it was at rest. Instead of so doing he undertook to unclog it while it was in motion.
In Moore v. Railroad, 146 Mo. l. c. 582, this court quoted with approval the rule laid down in Bailey on Personal Injuries Relating to Master‘and Servant, vol. 1, sec. 1121, where it is said: “It is a familiar principle, which common sense as well as the rules of law ought to teach any one, that where an employee of a railroad knowingly selects a dangerous way when a safer one is apparent to him, and is thereby injured, he is guilty of contributory negligence. ”
And in section 1123 the same authority says: “Where a person having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover.”
The plaintiff here selected an obviously dangerous method when a perfectly safe one was available to him, and when it was a matter entirely for his determination which course he would adopt, and must be held to the consequences of his own act.
The plaintiff, however, contends that this case falls within the rule prescribed by section 6433, Revised Statutes 1899. That section is as follows: “The belting, shafting, 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.”
In Lore v. American Manufacturing Co., 160 Mo. 608, it was held that it was not necessary for a pleader to invoke the aid of the statute by any special reference thereto, but that it is sufficient to state the facts which bring his case clearly within the law; and that case correctly stated the rule of law. But the most casual reading of the statute demonstrates that it has no application whatever to the case at bar. The statute is confined to belting, shafting gearing and drums in manufacturing establishments. Neither the allegations of the petition nor the evidence in this case bring this case within the letter or spirit of the statute. The injury complained of was not caused by any belting, shafting, gearing or drums of the machine. And there is nothing in the case to show whether or not those features of the establishment were or were not properly safeguarded as the statute requires. The statute does not, either in letter or spirit, cover a case like the case at bar, and especially does not require rollers of a planer to have a shield or guard to prevent the hand of an operative from being injured by being thrust into it when the operative had taken hold of an obstruction in the planer as the plaintiff did in this case. Moreover, as hereinbefore pointed out, the plaintiff’s hand would necessarily have been injured in some degree even if there had been a shield over the back rollers.
The remaining negligence of the defendant complained of is that originally there was a shield in front of the hack rollers, which had been broken off about two months before the accident, and that in consequence thereof the machine was defective, and that the plaintiff did not know of such defect, and in consequence of the defect was injured.
' The shield was broken off at the time the plaintiff was assigned to duty as helper. The fact that there was no such shield was obvious to the plaintiff, and he admits that he knew there was no shield there during the time he worked with the planer. As before pointed out, if there had been a shield there the plaintiff would have been necessarily injured in some degree, perhaps less than if there was no shield; but whether the shield was originally intended to prevent the hand of the operator from coming in contact with the back rollers, as the plaintiff’s testimony tends to show, or whether its purpose was to sweep off the shavings from the board and prevent them from marring the planed surface of the boa:rd, as the defendant’s testimony tends to show was the purpose of the shield, is not for this court to decide, nor is it at all material to the ultimate determination of this case. The fact that being without a shield made it more dangerous to put a hand into the space between the presser and the back rollers was a fact which was obvious to the plaintiff, and, therefore, if it was negligence for the master not to have such a shield, it was equally contributory negligence for the servant to so place his hand in that space when there was no shield. So that the absence of the shield cuts both ways. Upon the whole case, it is plain that even if there had been a shield over the back rollers the plaintiff would have been injured in some degree by placing his hand in the space between the presser and the back rollers while the machine was in motion, and the fact that others had
Upon the case made, therefore, whether considered from the standpoint of the plaintiff or of the defendant, the conclusion is irresistible that no case of actionable negligence has been made out against the defendant^ but that the" plaintiff’s misfortune must be attributed solely to his own negligence.
For these reasons the judgment of the circuit court is reversed.