Chicago Veneer Co. v. Walden, Pulaski, 1904

CHICAGO VENEER CO. v. WALDEN.

COURT OF APPEALS OF KENTUCKY

82 S.W. 294; 1904 Ky. LEXIS 378

October 6, 1904, Decided

PRIOR HISTORY:  [**1]  Appeal from Circuit Court, Pulaski County. "Not to be officially reported." Action by Miles Walden against the Chicago Veneer Company. From a judgment in favor of plaintiff, defendant appeals.

DISPOSITION: Reversed.

COUNSEL: O. H. Waddle, for appellant.

Edwin P. Morrow, for appellee.

JUDGES: O'REAR, J.

OPINION BY: O'REAR

OPINION

 [*294]  O'REAR, J. Appellee was employed as a laborer about appellant's sawmill. His immediate duties were in connection with crating and loading the finished product of the mill. The crating was done by inclosing sawed pieces in boxes made from cull lumber in the mill. The culls were cut by a ripsaw to proper sizes. This was done in appellee's presence. After he had been so engaged for some weeks, the sawyer failed to appear one day. The foreman of that room undertook to saw out enough for appellee's work, but, upon inquiring, learned from appellee that he could operate the saw. Although he had never done so, appellee thought he could, and began it in the foreman's  [*295]  presence. He seemed to be able to handle it all right. The foreman then turned his attention to other work, leaving appellee at that task. In the course of a few minutes later appellee had inflicted a severe injury to his hand by getting it in contact with the  [**2] saw. He sues to recover for his damages.

The negligence alleged and relied on consists of these two items: (1) That the lumber furnished him to saw was faulty--was culls, windshaken, etc.--and was therefore particularly dangerous to handle. (2) That the saw was not reasonably safe for the purposes for which it was employed. That by reason of the foregoing he got a plank caught upon the saw, which drew him out with the result stated. The arrangement and use of the saw was of the simplest kind. A small disc, a circular saw operated in a bench, extending less than one-half its diameter above the top of the bench, which was smooth and flat. Its use was to rip into given widths refuse or cull planks, severing the serviceable from the useless. It was operated by shoving the planks along the top surface of the bench so as to have the saw, run at a high speed by steam, to cut it open in the desired widths. The danger, and the sole danger, in the work, was from coming in contact with the buzz-saw. Care was necessary to keep the hands, person, and clothing from touching it; also, in handling the lumber, to keep it from swinging against the saw, thereby being caught and throwing the holder against  [**3] it, or causing the plank to fly up and strike him. Appellee was about 52 years of age, and had had some experience about sawmills. He says he was ignorant, in fact, of the dangers of this saw and its arrangement, although he did not tell the foreman so. His work seems to have been as simple as it was possible to have to do in connection with operating a circular saw in a sawmill.

We do not see that the master in this case was guilty of any neglect. In the first place, it was the proper use of that saw to have it cut up cull lumber. It cannot be negligent per se to use such a saw for such a purpose. Appellee, in handling that lumber, knew from necessity that it was that grade, and was frequently affected with windshake. In the next place, it was not shown nor claimed that the saw and its environment were not in perfect repair and fit condition. It was contended, though, that something else should have been added--some kind of guard--to have protected the workman. None feasible was suggested at the trial. But, be that as it might, none was there, and had never been. Appellee necessarily saw the condition of the saw and bench, and could see and did see that there was not a guard on or  [**4] about the saw. If he, with full knowledge of this condition, undertook the work, its ordinary risks were what he voluntarily assumed. That it could have been made safer is not the question in this case. That it was dangerous goes without saying. But the danger was an obvious one, and seemingly an incident of the operation of the machine; in itself the simplest kind. If appellee did not assume that risk, as explained, we cannot imagine one in that work that he could have assumed. Being no evidence of actionable negligence, the trial court should have granted the peremptory instruction to find for the defendant.

Judgment reversed, and cause remanded for a new trial under proceedings not inconsistent herewith.

P 1. See Master and Servant, vol. 34, Cent. Dig. § 229.