Lemser v. St. Joseph Furniture Manufacturing Co.

Gill, J. The' plaintiff sued the defendant and recovered a judgment for $2,000, because of personal injuries received while operating one of the circular saws in defendant’s furniture factory. Statement. At the time of the injury plaintiff, who was -then a young man of twenty-two years of age, was employed about the factory as a kind of “roustabout,” carrying lumber, furniture, etc., and had no experience whatever in working the saws. On that day, however, the foreman put the plaintiff to work in operat- . . ... mg one of these circular saws which was — 216 — so set in a table about four feet square that the top of the saw came up through a slot in the table and projected above the plane or surface of table about two inches. The saw was fourteen inches in diameter and was run by steam power at about three thousand revolutions per minute. The saw table was about four inches lower at the end farthest from the sawyer (called the back end of the table) to enable the blocks to pass freely dówn the incline and fall off the table. The jar of the machinery caused the blocks that were cut off to move down the table, and they had a tendency, according to the evidence, to come in contact with the teeth at the back edge of the saw. A block did, in this case, come in contact with the teeth at back edge of saw and was knocked into plaintiff’s eye practically destroying the sight. Plaintiff’s witnesses testified that there is a tendency of blocks on such a saw and table as plaintiff was using, to come in contact with the teeth of the saw and be picked up by the teeth thereof and thrown forward against the sawyer. This was particularly the case in sawing these small pieces. That the suction caused by the saw running through the slot in the table will to some extent lift a small block and assist it to get into the saw teeth. The particular negligence charged on defendant, and relied on by the plaintiff, was its failure to provide this saw 'with proper guards to protect the workmen while engaged in operating the same, as also the negligence of defendant’s foreman in failing to warn plaintiff of the dangers attending the use of the machine. There was evidence tending to prove the existence of two appliances in general use in the operation of such saws as this one, to wit: A board suspended over the machine and immediately in front of the sawyer, so as to protect him from the flying blocks, sawdust and the like, and the other a wedge-shaped piece of wood so ad — 217 — justed to the table and extending over the teeth of the saw at the back end of the table, that the blocks would be carried away from the teeth and they be so covered that the blocks would not catch onto the same. It is conceded that, the machine in question had neither of such appliances. P?uryTnon«dicuTo^eye. The matters complained of and urged by defendant’s counsel as reasons for reversal relate almost entirely to the instructions given, modified, and refused. 'Something is said as to the sufficiency of the evidence to support the verdict, and that the damages awarded are excessive, but these latter objections are so utterly without merit that we shall give them little space in this opinion. The evidence tends to prove the facts set out in the foregoing statement: that the machine was not provided with such protection and guards as it should have been; that defendant did not in this respect act as an ordinarily prudent and careful employer would be supposed to under similar circumstances, and that by reason of all this plaintiff was injured. And as to the amount of damages, it is sufficient to say that defendant did not make this as one of the grounds in the motion for new trial. But even if there complained of, we are not authorized from the showing made here to disturb the judgment on that account. The plaintiff was in person before the court and jury and they were much better informed than we as to the extent of injuries inflicted. From this record, however, it would seem that plaintiff’s injuries are of a most serious character. We are not prepared to say, conceding defendant at fault, that $2,000 is excessive damages for the practical loss of an eye to this young man and the pain and mental anguish that probably followed therefrom. — 218 — Nplead¡ngfp¿tiiñ‘j«yc.ause of The first point made in defendant’s brief relates to an alleged defect common to the petition and plaintiff’s first instruction, in that the one failed to allege, and the other failed to mention, as an ingredient essential to plaintiff’s right of recovery, that the negligent omission of defendant to protect the saw in one or both of the usual means was the cause of the plaintiff’s injury. As to the petition, it may be conceded that it was not as perfect in that respect as it should have been; yet, since the defendant at no stage of the case made any such objection as that now urged, since the cause was tried and evidence adduced without objection tending to prove all the features necessary to make plaintiff’s case, it is now too late to bring forward an objection so technical as that complained of. Hall v. Water Co., 48 Mo. App. 356; Lynch v. R. R., 111 Mo. 601. instructkJÜs'T' cause of injury. And while plaintiff’s first instruction did not, as clearly as it ought, perhaps, tell the jury that to justify a recovery it should appear from the evidence that defendant’s failure to guard or protect the saw was the cause of the injury, yet this omis- . , , -, , , sion was entirely cured by another instruction given at defendant’s request. In defendant’s instruction number 3 the jury were expressly told that before they could find for the plaintiff “they must believe from the evidence not only that at the time of the accident the saw in evidence was being run without a guard or wedge, as described in evidence,” but also “that the accident would not have happened but for such omission,” etc. The mere omission in one instruction will not be regarded as reversible error if another instruction cures it. “If the qualification o.f the instruction complained of appears elsewhere in a form fairly bringing it to the attention of the jury as a modification of the other, the judgment will not on that account be — 219 — reversed.” Schroeder v. Michel, 98 Mo. 43. “The instructions are to be taken as a whole, are so taken by men of common understanding, and can be understood in no other way.” Owens v. Railway, 95 Mo. 169. This is not a case of conflict in instructions, but at most an instance of a mere omission in one instruction which is manifestly remedied by the direct charge of the court in another instruction. And when these instructions are all read and considered, as one series, there was scarcely a possibility for misunderstanding by the jury. Mservant?ndegiifío ns? *instruc" We fail also to see any substantial objections to plaintiff’s instructions 2 and 5. If the saw was dangerous to operate unless guarded and protected in the usual manner as the witnesses testified and defendant knew this or might have so known by the exercise of -ordinary care, then it was the duty of the defendant to use these appliances, and a failure so to do was negligence. And further, if the machine was in such dangerous condition and unsafe to handle, and defendant’s foreman knew of this, or could with reasonable care have known thereof, then, since the plaintiff was, to such foreman’s knowledge, unskilled in such work, and the dangers were not obvious, it was such foreman’s duty to warn the plaintiff so that he might be on guard to protect himself. And if plaintiff did not know and was not advised of the unsafe condition of the saw, and if the danger was not obvious to one unskilled as he was and he was not warned of the danger encountered in its use when ordered to do so, then he was not guilty of such contributory negligence as would preclude his recovery. These instructions, when read in connection with plaintiff’s number 1, to which there was express reference, in effect so declared the law and were therefore not objectionable. The court also properly refused to give defendant’s — 220 — instruction numbered 2. There was evidence tending to prove that defendant’s foreman failed to advise plaintiff of the dangers attending the use of the machine, unguarded as it was. Indeed, the testimony tends to show that the foreman in effect assured the plaintiff that it was all right, and directed him to proceed in its use. And it may be, too, that if plaintiff had been warned in advance he could have avoided the injury; in which event then it might be well said that the failure to advise the plaintiff was to an extent the cause of the damage. __: safe appHappellate pract'ce. Defendant’s counsel have in their printed reply argument suggested for the first time an objection to the courts’ modification of its instruction numbered 6. This is a matter entirely outsi<je 0f defendant’s assignment of errors— or rather beyond the points made in the original brief which is to be taken as the assignment of errors — and it is not therefore entitled by strict rule to be heard thereon. We have examined the matter, however, and find the court’s modification so unimportant that the objection seems trivial. When this instruction is read entire it clearly tells the jury that defendant was obliged to provide such guards, etc., as were well known appliances used for the protection of the operators of the saws in question. This being so, the criticism of the instruction as modified proves groundless. A careful review of the entire record discloses no substantial error, and the judgment will therefore be affirmed. All concur.