187 Mo. 227 | Mo. | 1905
Plaintiff recovered a judgment for $5,000 damages for personal injuries alleged to have been received while he was in the service of the defendant, through defendant’s negligence. Defendant appeals.
Defendant operates a sawmill in which the plaintiff was employed. The plaintiff’s usual work was to oil the machinery, but in the temporary absence of the
The evidence for the plaintiff tended to show as follows:
The edger is a machine used to rip off the edges of lumber or rip the boards into desired widths. There were several saws in the machine, fixed on a shaft nine or ten feet long. These saws were movable and were adjusted by the operator to rip boards to any desired width. The plaintiff’s immediate task was to rip boards that were twelve inches wide in two, making boards six inches wide, and the saws were set accordingly. There were rollers to carry the lumber to the saws, and rollers beyond to carry it after it had passed through the saws to the place of deposit, and there were rollers, called dead rollers, to bear down on the lumber and hold it firm against the saws, these last-named rollers weighed 100 or 115 pounds. They could be raised or lowered by the operator by means of a lever at his hand so as to adjust them to lumber of any thickness. He testified that he had been ripping some two-inch pieces and the rollers were set for that, but, as he was to change to one-inch stuff, he let the rollers down to bear at one inch. After one or two pieces had passed through the saws and he was passing another piece through, one part of it, the half to the" right, was thrown back by the machine and struck him on the hip, inflicting the injury complained of; the other part passed on through.
Plaintiff also testified that the boxing in which the shaft turned was so worn that it required constant oiling to keep it from getting hot; that it was so worn that he could insert his finger in it, and frequently did so to
Pfenninghausen, a sawmill man, testified as an expert for plaintiff. He said'that if the boxing was so worn that the shaft had any end play “to amount to anything” it would cause the saw to lead, and if it had any side play it would cause the shaft to leave the proper position in line with the rolls and cause the saws to lead, that is, they would not run in a line with the rolls, but cut the lumber wedge shape having the effect of pinching the lumber fed into the machine, throwing it off, forcing it out back, and the machine would not give satisfaction.
“Q. It is running through, say, a board sixteen feet long, twelve inches wide, and one inch thick, splitting it into six-inch pieces of No. 1 first-class lumber, you have different classes of lumber, and if that board were to fly back and was fed again through this roll and go through, what would be the cause of that, in your judgment? A. There are various causes; of course, the probable cause is by the saws not running in line with the rolls.
“To this quéstion and answer defendant objects, because plaintiff himself states that the lumber did clear the saw. No ruling by the court.
“Q. Suppose it had gone far enough to split the piece in two, would it be between the saws then or not? A. The saw would have the same action on the piece.
“Q. Until it had come clear back this way? A. Yes, sir, until it would go clear out of the saws; if the saws were to lead as the board went in here and*233 make a wedge in leading, of course, as they lead it makes a board a trifle wider than as it first enters, and if the board was not clear out of course it gets wider between the saws and the friction of the saws would throw the board back, if not clear out here; of course, if it is clear out here, it is clear out of reach of the saws.
“Q. You spoke of the rolls having teeth on them, what is the object of the teeth being on the rolls? A. The object of the teeth is to secure a steady feed and if the teeth were to become worn on the bottom rolls, of course if they are not sharpened or some other roll put in, it would not insure a safe feed; of course upon a safe feed depends a good deal, although these rolls here press the board down on the lower rolls here, but at the same time, if the teeth are dull, and if, as I say, the saws lead, the saws can push this board back through here by reason of being smooth rolls; if the teeth are sharp, of course they claw into the board and would, if anything, attempt to push the board through, even if wedged in the saws, and it usually occurs, if a board passed behind here to push the board through; of course if these rolls are smooth, they keep on running but the board remains there; of course here it has two feeds, but out here it only has one feed and if it gets wedged it throws it back there. ’ ’
Plaintiff’s testimony also tended to show that the machine bad been in operation for ten months or more before and was operated for two months or more after the accident without repairs being made; that it was stopped only a few minutes after the accident when another man took the place the plaintiff had occupied operating the edger and went on with the work; that during all this time the mill sawed 100,000 to 150,000 feet of lumber in a day, at least, half of which went through this edger. The plaintiff’s testimony also tended to show that his injuries were serious.
At the close of the plaintiff’s case the defendant asked an instruction in the nature of a demurrer to
The testimony on the part of the defendant was to the effect that that machinery was in good order; that its average output was 120,000 feet of lumber, a day; that it was run steadily on after this accident the same as before for about two months, when the whole mill was shut down for its usual annual overhauling; that no other accident of this kind had ever occurred with the machine either before or since, and that it was impossible that a like accident could occur unless the rollers that held the boards down were lifted. Defendant’s evidence also tended to show that the plaintiff’s real injuries were of trivial character, and that those he complained of were fictitious.
The court ought to have given the instruction asked by the defendant in the nature of a demurrer to the evidence.
There was evidence tending to show that the boxings in which the shaft revolved were worn, and that the flutings on the rollers were worn, but there was no evidence tending to show that those conditions caused the accident. The burden was on the plaintiff to show not only defects in the machinery, but also to show that his injury came from those defects. Neither he nor any witness of his undertook to say that the worn condition of the boxings and rollers caused the accident; the utmost that could be made out of the testimony was that it might possibly' have caused it. Plaintiff said he supposed the piece that hit him got hung on the saws. His expert witness, Pfenninghausen, when asked to give his opinion as to what caused the accident, said: ‘ ‘ There are various causes; of course the most probable cause is by the saws not running in a line with the rolls.” If there were various causes, he should have stated them and it then would have been for the jury to say which was the most probable. But his testimony, sifted to the grain, leaves nothing but conjecture. What
We must keep in mind that this dead roller, weighing 100 or 115 pounds, was let down on this board for the purpose of holding it firm against the saw, so firm that it would not yield when by the force of the feed roller it was carried against the saw. The action of these rollers was to carry the board from the operator. The theory of respondent is that the half of the board which hit the plaintiff-was thrown back with such force that it passed, swift as a missile, under these heavy
There is another fact in this case shown in the plaintiff’s evidence which, even if the expert’s conjecture as to the cause of the accident should be accepted, would still preclude a recovery; that is, this machine had been in operation for ten months or more before the accident and was continued in operation for two months thereafter without repair, cutting about 100,000 feet of lumber daily, yet in all that time no accident of a like character occurred. For many months, according to the plaintiff’s testimony, the boxing and the rollers were in the same condition as they were on that day, yet it did its work well and inflicted no injury. There was no evidence that it turned out wedge-shaped boards or that the product of the mill was in anyway unsatisfactory. Even, therefore, if it was possible that the accident was caused as the expert said it might have been caused, still the master was not guilty of neglect of his duty. It is the duty of a master operating ma
In the brief for respondent the learned counsel make a strong argument based on the theory that the plaintiff was a green hand, that it was negligence to put him to do that work which required skill and experience. That argument is almost a confession that it was a lack of careful operation that caused the accident.
We do not care to discuss the evidence on that point, however, because that question is not in this case. The defendant is not in court to answer that charge of negligence. There is nothing in the petition on which to base such a charge nor was the case tried on that theory in the circuit court. If authorities are desired to sustain the proposition that the plaintiff can not allege one act of negligence in his petition and recover on proof of another totally different act, they will be found by reference to the brief of appellant’s counsel.
Whilst the plaintiff’s evidence fails to show the cause of the accident, that of the defendant does show it quite satisfactorily. From the description of the machine and its operation, as given in the evidence on both sides and illustrated by the model used in the oral
There are other points presented in the briefs but the conclusion we have reached on the point above discussed renders a consideration of the others unnecessary.
The judgment is reversed.