113 Mo. App. 717 | Mo. Ct. App. | 1905
— Plaintiff, injured while in the service of. defendant, charged that the negligence of the latter was the direct cause of his injury. In addition to a general denial, defendant in his answer pleaded assumption of risk and contributory negligence. At the conclusion of the evidence defendant unsuccessfully requested the court to direct a verdict for him. Plaintiff recovered judgment in the sum of $1,074. Defendant assigns as error the refusal of the court to sustain his demurrer to the evidence. One of the claims advanced is that plaintiff failed to show that the negligent act complained of caused the injury. No evidence was offered by defendant and the relevant facts disclosed in that introduced by plaintiff are these:
Defendant at the time of the occurrence in question (October 23, 1903) owned and operated a factory in Kansas City for the manufacture of certain articles of furniture. Installed therein, and in use, was a certain sawing machine called a “ripsaw” operated by steam power. The component parts of the machine were mounted’ npon a metal table three feet high, in the top of which a circular saw sixteen inches in diameter was vertically set to freely permit its revolntion. The table top, horizontal in position, was three feet long, two wide and about one inch thick, and projected in all directions over its supporting die which extended upward from one end of the base. The other end of the base carried a revolving shaft upon which was set three wheels, two of which were used to communicate the power to the saw shaft, the other to carry the belt coming from the engine
If any credit is to be given the testimony, defendant’s negligence must be conceded in the consideration •of the ruling upon the peremptory instruction. It was negligence per se for defendant to fail to guard the pulleys and belts. [R. g. 6433; Colliott v. Mfg. Co., 71 Mo. App. 163; Lore v. Mfg. Co., 160 Mo. 608; Blair v. Heibel, 103 Mo. App. 621.] The stick could not have fallen into the wheel had this duty been performed; from which it follows that the unguarded condition of the machine was the immediate cause of the injury.
But defendant says that plaintiff’s account of the manner of his injury is at variance with the physical ■conditions disclosed. While appellate courts uniformly refuse to weigh evidence, they do not renounce the right to reject entirely the testimony of witnesses found to be repugnant to physical law and facts. Testimony, to be •entitled to any weight, must be within the bounds of reason; failing in this, it cannot, be denominated evidence and should be cast out as devoid of probative force. But when the testimony of witnesses can reasonably be reconciled to the physical facts we will not reject it, nor weigh it; notwithstanding we may believe the weight of the physical evidence opposes that given by witnesses. It is the duty of courts to determine what •constitutes substantial evidence, and the business of the triers of fact to settle conflicts therein.
Turning to the facts of this case, we see no reason for declaring the occurrence as detailed by plaintiff an impossibility. Considering that plaintiff was standing •on the side of the table which carried the exposed saw -and on a line with the wheels and the pile of waste, and
Approximately, the bottom of the saw was two and one-half feet from the nearest wheel; the end of the table one and one-half feet therefrom. Omitting from consideration any involuntary movement of plaintiff’s body towards the saw as a result of the sharp blow received —a very likely occurrence — in the position he occupied his hand was required to move a distance of but a foot —or, at most, eighteen inches — to reach the saw. No. law of physics need be disregarded in accepting plaintiff’s testimony.
Further, defendant argues that plaintiff’s account of the injury fails to coincide with specific facts alleged in the petition. Plaintiff was the only witness to the injury, and owing to the rapidity of the occurrence his opportunity was too restricted to permit of accurate observation. Consequently, his statement of the details of the situation existing when he reached for the stick is admittedly somewhat vague; but the salient facts appear and are consistent with those alleged. As to facts not elemental to the cause of action, a variance between allegation and proof is immaterial. As stated in the case of Waldhier v. Railroad, 71 Mo. 518, “there is a wide margin of difference between a case where there exists a lack of correspondence between the allegation of the cause of action and the proof in some particular or particulars only and one where the allegation is unproved
Also, it is urged that as the unguarded condition of the machine and the likelihood that waste material from the sawing would fall into its unprotected gearing and belts and be converted into missiles or instruments of danger were obvious and known to plaintiff he impliedly assumed the risk of injury therefrom. Plaintiff had been working at this machine for some time and admitted that sticks frequently caught in the wheels. He must have known that danger confronted him when his position placed him within their range of action. His admitted knowledge of the dangers incident to his master’s negligence in failing to guard the machine presents the question of assumption of risk as one of law to be determined by the court. In the case of Shore v. Bridge Co., 111 Mo. App. 278, 86 S. W. 905, after reviewing pertinent cases in tMs State, we said: . . in recent decisions noted the prevailing opinion inclinen to the view that the existence of the master’s negligence excludes the implication of an assumption of risk on the part of the servant. The scope of the rule which affords immunity to the master while conducting his business in his own way is confined within the limits of reasonable care.” This principle has been so plainly stated in so many recent decisions of the Supreme Court that it must be considered as firmly settled in this State, whatever may be the views entertained in other jurisdictions. [Huhn v. Railroad, 92 Mo. 440; Soeder v. Railroad, 100
We do not understand that in the recent case of Mathias v. Stock Yards Co., reported in 84 S. W. 66, 185 Mo. 434, the Supreme Court intended to depart from the rule followed in the long line of cases above cited. An analysis of that case is convincing that the conclusion reached was based upon the hypothesis that the appliance furnished by the master which was the subject of complaint though not the best for the purpose of its use was reasonably safe. In other words, the master was held blameless and the risk, treated as one incidental to operations conducted by the master in a proper manner, being obvious to* the servant was for that reason held to have been assumed by him as a part of the contract of employment. The court, in defining the duty of the master to provide the servant suitable tools and appliances with which to work, said: “In cases like the present it seems that the risk of injury being but small, the use of very primitive and inefficient implements is allowable and such use will fill the measure of ordinary care. The master is not the warrantor of the tools furnished his servants having exercised ordinary care in the selection of the implements, his liability, so far as mere selection is concerned, ceases.”
But when the master has failed to exercise ordinary care with respect to tools and machinery provided for the servant’s use; when, as in this case, he has ignored the requirements of the statute, the fact that the dangers resulting from his dereliction are obvious will not excuse him from liability on the ground of assumed risk. The
With the defendant’s negligence found, the only defense available was that of contributory negligence. That issue was submitted to the jury and decided in favor of plaintiff, but we are asked to hold that the negligence of plaintiff in working with the machine in its unsafe condition was of a degree to make it a question of law for the court. The issue of contributory negligence is one of fact to be decided by the jury except when it appears that the danger of injury is so apparent and certain that no person of ordinary prudence would encounter it. We are unable to say that plaintiff was not justified in believing that he could by the exercise of care avoid danger by keeping the sticks from moving into the wheels. Evidently, defendant thought so. Plaintiff had worked there without injury for a number of days. He was in the performance of duties assigned him by defendant when injured and which were made necessary by defendant’s negligence. Under such facts his conduct in continuing the work should not be characterized by us as essentially negligent. The issue was one for the jury to pass upon. The request for a peremptory instruction was properly refused.
Plaintiff’s second instruction criticised by defendant is identical with one approved by the Supreme Court in the case of Lore v. American Mfg. Co., 160 Mo. 616, and for that reason will not be discussed.
An examination of the record discloses that the case ,was fairly tried and submitted, except in one particular. Loss of earnings from the date of injury to the time of bringing suit was made an element of damage in the instructions given. It is the rule that such damages must be specially pleaded and proven. [Wilbur v. Railroad,
Plaintiff testified that he had lost all of his time from the date of injury and that the value thereof was ten dollars per week. As his evidence is uncontradicted it is to be presumed that the jury estimated his lost earnings at that rate. The injury occurred on the twenty-third day of October, 1903, and the petition was filed ■ November 20, 1903, just four weeks thereafter. It thus being possible to ascertain the maximum allowance the jury could have made under the evidence for'these dam- . ages, a new trial of the causé will not be ordered if a remittitur is entered. Upon condition that within ten days from the filing of this opinion plaintiff remits forty dollars the judgment is affirmed; otherwise, it is ■reversed and the cause remanded.