Buchanan v. Lewis A. Hicks Co.

Mr. Justice Moore delivered the opinion of the court. It is contended that errors were committed in refusing to grant a judgment of nonsuit, and in declining [506] to instruct the jury to find a verdict for the defendant when the cause was finally submitted. The testimony shows that the plaintiff is a carpenter 27 years old, and had worked at his trade 12 years. He had been employed by the defendant about 2y2 months prior to January 3, 1912, on which day, by direction of the defendant’s superintendent, he commenced operating a circular ripsaw, but before that time he had never had any experience in that line of work. The saw frame and table were adapted to a combination of instruments by changing which wood could be cut with the grain or across it. The saw designated for the kind of work desired was fastened to a mandrel that was so attached to the frame that the operator, by placing his foot on a lever, brought the edge of the saw above the surface of the table, along which he pushed with his hands the material to be cut. The plaintiff on January 4,1912, attempting with the ripsaw to split a block two inches in thickness, four in width, and nine in length, so as to form wedges, his left thumb came in contact with the circular cutting instrument, and a piece of flesh was sliced from that digit. 1. It is the duty of a master to exercise care in furnishing a reasonably safe instrument with which a servant may perform the work demanded of him. In Geldhard v. Marshall, 43 Or. 438, 444 (73 Pac. 330, 331), Mr. Justice Bean, in discussing the carelessness of the employer to the person engaged to render personal services, says: “There may be, and are, cases in which the master’s negligence is clearly inferable, although there is no positive proof thereof. The rule is that if two inferences may be legitimately drawn from the facts in evidence, one favorable and the other unfavorable to the defendant, a question is presented which calls for the opinion of the jury.” [507] 2. In the case at bar the testimony in chief of the defendant’s witnesses is to the effect that the saw causing the injury could' not have been operated without a guard. E. E. Kain, the defendant’s superintendent, on cross-examination, however, said upon oath: “I always make it a custom to put a guard on a saw.” C. P. Caulfield, a deputy labor commissioner, who had been engaged in Portland three years in inspecting machinery, testified that he had examined the saw in question, and that it was practicable to have guarded an instrument of that kind. Prom the testimony of the witness last named it might reasonably have been inferred that the defendant was negligent in failing to place a guard upon the saw, and, this being so, the question was properly presented to the jury, and no error was committed, as alleged. 3. It is insisted that no testimony was offered tending to support the averment of the complaint that the defendant did not have a guard on the saw, and for that reason errors were committed in denying the motion for a nonsuit and refusing to direct a verdict, as requested. The answer practically admits that no guard was placed on the saw, averring that the instrument could not be operated when so attempted to be protected, and, this being so, no evidence on that branch of the question was required. 4. It is argued that no testimony was offered tending to show that the failure to place a guard on the saw was the proximate cause of the hurt. In actions to recover damages for a personal injury it is essential to a recovery that the negligence alleged in the complaint should be the proximate cause of the hurt. 5. Where, however, a question as to which of the several causes produced the injury arises, the issue should be submitted to the jury for their determination: Elliff v. Oregon R. & N. Co., 53 Or. 66, 76 (99 [508] Pac. 76); Palmer v. Portland Ry. L. & P. Co., 56 Or. 262, 268 (108 Pac. 211). 6. It is contended that no evidence was produced to show that the saw in question when in operation was so dangerous as to require a guard. There are some physical facts so well established that they will be assumed as true; thus where a circular ripsaw 14 inches in diameter set in a frame, so that when the operator placed his foot on a lever, thereby raising the edge of the saw above the surface of the table, and the instrumentality was rapidly operated by electricity, the safety of human life and the protection of the- limbs of inexperienced laborers engaged about such a machine demand that a guard should be supplied. 7. The condition of the ripsaw and its mode of operation were such that no evidence was required to prove that the defendant knew of the danger incident to working with or about such machinery without having a guard on the saw. If by the breaking of some part of the instrumentality, which was apparently in perfect condition, and in consequence of a flaw, the plaintiff was injured, it would have been necessary to prove the defendant’s knowledge of the imperfection, or that it was negligent in failing to discover the defect: Geldard v. Marshall, 43 Or. 438 (73 Pac. 330); Finn v. Oregon W. P. Ry. Co., 51 Or. 66 (93 Pac. 690). Such is not the case before us, where the operation of the saw was at all times, inherently dangerous, when used without a guard. What has just been said in respect to evidence applies also to the complaint, and shows that it was not necessary to allege such scienter. Complaint is also made because the court refused to instruct the jury as requested by defendant’s counsel. An examination of the entire charge as given convinces us that the facts involved were fairly presented to the [509] jury, and that no errors were committed in denying the requests. From a careful examination of the whole testimony, which is attached to the bill of exceptions, we are unable affirmatively to say there is no evidence to support the verdict. Other errors than those considered are assigned, but, deeming them immaterial, the judgment is affirmed. Affirmed. Mr. Chief J ustice McBride, Mr. Justice Burnett and Mr. Justice Bamsey concur.