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(220 S.W.) 11. Damages 216(8)-Instruction as to impairment of earning capacity held proper.

Nagel & Kirby and Charles P. Williams, all of St. Louis, for appellant.

Bartley & Douglass, of St. Louis, for re

In an action for damages to a 19 year old boy for injuries to his right hand, which result-spondent. ed in permanent loss of the use of his thumb and all his fingers, except the little finger, an instruction on measure of damages properly included impairment of earning capacity of the plaintiff.

SMALL, C. I. On December 1, 1916, plaintiff, then about 19 years of age, was injured by a circular saw while employed by defendant, as a helper to the operator of the saw, who was engaged in cutting lumber into

es.

12. Master and servant 121 (2)-Reasonable time not allowed by statute for guarding dan- strips about 20 inches long and 4 inches gerous machinery. wide, for the purpose of making wooden box. The saw was mounted on an iron table Under Rev. St. 1909, § 7828, prohibiting the use of unguarded dangerous machinery, an or framework, and worked backwards and employer is not given a reasonable time within forwards through a slot in the top about an which to guard the machinery, but is absolute-inch wide. It was operated by a lever, and ly forbidden to use it until it is guarded.

[blocks in formation]

An interrupted argument by plaintiff's counsel, indicating disapproval of law of contributory negligence, to which objection was not sustained, does not require reversal, since, if completed, the argument might have been unobjectionable, and especially where there is no reason to believe that such argument influenced the verdict for plaintiff.

16. Damages 132(8)-$18,000 for permanent injuries to right hand reduced to $12,000.

The verdict awarding $18,000 for damages to a 19 year old boy for permanent injuries to his right hand, which deprived him of the use of his thumb and all his fingers, except the little finger, is excessive, and should be reduced to $12,000.

Appeal from St. Louis Circuit Court; Samuel Rosenfeld, Judge.

could be pulled toward the operator and raised up, so that about one-half was on top of the table, and it could also be pushed back, so that three-fourths or more extended below the top of the table. In cutting these pieces of lumber, they would accumulate on top, around, and under the table, and get under the saw. Sawdust would accumulate, too, under the table. It was the plaintiff's duty to keep the sawyer supplied with boards, and to carry the pieces of boards, when cut, away, and deliver them to the carpenters, who were making boxes with them. The plaintiff's duties required him to work fast. He had worked for the defendant several months, but in this particular capacity only blocks from under the machine, while it was about six days. He had never taken any in motion, until this occasion when he was hurt. On the day when he was injured the machine was running, and while the plaintiff was attempting to pull out a block or piece of board that had bounced or fallen under the machine, his right hand and arm caught by the saw and severely injured.

were

The charge of negligence is that the circular saw was so placed as to be dangerous to the plaintiff while engaged in his duties in picking up the blocks or pieces of board which had fallen under the table, unless the saw was guarded, so that plaintiff's hand could not come in contact with it, and that plaintiff's injuries were directly caused by defendant's failure to furnish plaintiff a reasonably safe place to work and reasonably safe tools and appliances with which to work, in that:

"First. That the saw was so situated as to be dangerous to plaintiff while picking up the blocks under the table, and also so located that it could have been guarded without interference with its operation, and with but little expense, so that plaintiff's hand could not come in contact with the saw when reaching under the ta

ble to pick up blocks, but defendant negligently the injury to plaintiff's hand as aforesaid. failed to guard said saw, and thereby caused

Action by Thomas G. Wagner, by next friend, against the Gilsonite Construction Company. Judgment for plaintiff, and de"Second. That the defendant knew, or by the fendant appeals. Affirmed, on condition that exercise of ordinary care could have known, plaintiff remit $6,000 from the judgment for that blocks which were being cut by the saw $18,000; otherwise, reversed and remanded.' would fall under the table, and that in picking

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

up the blocks under the table, as plaintiff's duties required him to do, his hand was apt to come in contact with the saw, and, had the defendant exercised ordinary care for the safety of plaintiff, it would have extended the top of the table or closed up the end thereof, so that the blocks could not fall under the table, and thereby avoided any injury to plaintiff, but negligently failed to do so."

The answer contained a general denial; also a plea of contributory negligence, which the reply denied.

On the voir dire examination of the jury, the plaintiff's counsel asked whether any of the jurymen, or their near relatives, were employed by the Etna Insurance Company. Defendant objected to this question as improper, and that it was immaterial whether defendant was insured or not; that a list of cards had been furnished counsel, showing the occupation of each juror. To which plaintiff's counsel replied that the cards only showed the present occupation of each juror, and that his question goes to whether they have been so employed heretofore and includes their near relatives. The court overruled defendant's objection.

After plaintiff stated his age and residence, the following occurred:

"Q. With whom do you live? A. Mother and sister.

"Mr. Williams: I object to that as imma

terial.

"Mr. Douglass: How is that? A. With my mother and sister.

"Mr. Williams: The ground of my objection is this: What Mr. Douglass is trying to do is to bring out evidence of the family relationship of this man. My objection is that that doesn't make any difference with respect to the measure of damages in this case, and is absolutely immaterial.

"Mr. Douglass: So far as the measure of damages is concerned, that is true. My purpose is that this record shows that his mother is the next friend. The question naturally arises, why wasn't the father appointed, and I want to show he has no father.

"Mr. Williams: Let him ask whether his father is living. It makes no difference anyway. It isn't denied that the next friend is here. "Mr. Douglass: I have a right to clear it up before the jury.

"Mr. Williams: In view of the issues, it is absolutely immaterial.

"Mr. Douglass: Is your father living? A. No, sir.

"Ir. Williams: I move to strike that out, on its utter immateriality.

"The Court: I will overrule the objection." To this action of the court defendant objected and excepted.

Among other things, plaintiff testified,

follows:

as

"I had been bringing material to and taking material from this saw for a period of about six days before I was hurt. During that time Broderick was operating the saw. I told Mr. Douglass (on my direct examination) that I did not remember ever picking up any blocks from

under the saw before this time when I got hurt. I can't now remember that I ever picked up anything under that saw before. I was pretty familiar with the way the saw ran. When I got down there, to pick up the block that was in there, I did not tell Broderick that I was about to get down there, and to look out for me. I did not notify Broderick that I was going down there and get that piece. I didn't say anything to him at all to the effect that I was going down there, and for him to be careful or anything else. I didn't do it, because I didn't have time.

"Q. Why, it wouldn't have taken any time to have told him to hold the saw back there a second? A. I would have had to stop work to cal! his attention to that, if I wanted to speak to him. With that saw running, you can't speak as you can in a quiet room.

"Q. Certainly not, but it would have taken just a second to have said, 'Mr. Broderick, wait a minute; I want to get a piece out from under here.' Would it have taken you longer than that? A. No.

"Q. Well, you were in such a hurry, as I understand you, that you didn't have time to say that to him; is that right? A. Yes, sir.

"Q. Well, you knew that the saw was in that table there, didn't you? A. Yes, sir.

"Q. And you knew that that-the way that saw was operated, didn't you? A. Pretty well; yes, sir.

"Q. You knew that the saw was pulled backward and forward through the table there by the operator, didn't you? A. Yes, sir.

came out under the table toward the side where "Q. And you knew exactly how far the saw you were working, didn't you? A. No, sir.

"Q. You knew pretty accurately, didn't you? A. I knew pretty well, but I didn't know just how far.

"Q. But you knew pretty well how far it came, didn't you? A. Yes, sir.

"Q. And you knew how that saw came out that way when the lever was pushed forward from the operator, didn't you? A. Knew that it

came back.

"Q. Knew that it came back? A. Yes, sir. "Q. And you knew about how far it came back? A. I knew it came back pretty far; yes, sir.

"Q. Knew it came back pretty far. And you knew that the saw was revolving rapidly, didn't you? A. (No answer.)

"Q. Now, referring to this picture that your counsel showed you, Plaintiff's Exhibit A, you say that you didn't have time, knowing the situation of that saw, knowing about how far it came back, as shown in this picture here [Plaintiff's Exhibit A] you didn't have time to say anything to Broderick? A. Broderick was working; so was I. I had a lot of work what I had to do, and a whole lot of pieces of wood I had to carry to the carpenter's, and I had also to get other wood, so that Broderick could work, and if I would stopped, and not kept him in work, I would have got in trouble.

"Q. Didn't you tell me that you had already carried to Broderick a number of pieces of 4x4, upon which he was sawing at the time you got hurt? A. Yes, sir. They only lasted about that quick (illustrating). You cut up one of them pieces of wood and you have to take them a half a block to them-to him.

(220 S. W.)

"Q. Now, if you wanted to get a piece out, why didn't you reach underneath that pulley shaft? A. Because the platform was back there, up high, and there was sawdust in there.

"Q. How much sawdust in there? A. I don't know how much.

"Q. Have you any recollection? A. Well, I couldn't say how much sawdust was there. "Q. Was the sawdust piled up higher than the pulley shaft there? A. Well, it was-there was about that much space (illustrating) between the bottom of the pulley shaft and the sawdust; maybe a little bit more or a little bit less.

"Q. The saw was still turning towards him, wasn't it? A. Yes, sir; but it wasn't up in front where he was. It might have been back to the end.

"Q. Where was it? Did he have the saw back at the end, fixed back there? A. Maybe not fixed back there. It might have been maybe in the middle. I don't remember just where it was, but I know he wasn't pulling it to him. He was pushing the wood against the saw.

"Q. Now, you say the sawdust had piled up in that pit so that it was about four inches below the pulley? A. Somewhere around there. "Q. Four inches gave you a chance to get in there and pull that sawdust away with your hand and get a piece out, didn't it? A. If I lay down on the platform.

"Q. If you stooped down, wouldn't it do that? A. No, sir; you couldn't stoop.

"Q. You couldn't stoop and carry an armful of stuff, could you, when you were in a hurry? A. But you couldn't get down and reach under there at the same time.

"Q. Why couldn't you? A. The way it is now, perhaps you could, but with the platform up here you couldn't. "Q. * What is the diameter of the pulley wheel there [referring to the pulley wheel on Defendant's Exhibit 1]? A. (witness consults memorandum). Nineteen inches.

"Q. The diameter is 19 inches? A. Yes, sir. "Q. Half of that diameter would be 92, wouldn't it? A. Yes, sir.

"Q. So that the sawdust was piled up for about 5 inches, wasn't it, higher than the bottom of that pulley, wasn't it? A. I guess so. "Q. And the pulley was running? A. Yes, sir.

"Q. Running rapidly? A. Yes, sir.

"Q. The pulley throwing out any sawdust? A. I don't remember whether it was throwing sawdust out of it.

"Q. Now, at the time you put your hand in there, did you see this saw? A. Yes, sir. "Q. You saw it plainly, did you not? A. Yes, sir.

"Q. And you saw it revolving or moving? A. Yes, sir.

"Q. And you kept your eyes on the saw, did you not? A. No, sir.

"Q. As you put your hand in? A. No, sir; I looked at the saw, and then I looked down at the piece of wood, and wanted to pick the piece of wood up.

"Q. You just looked at that? A. Well, I looked at the saw, and I looked down at the piece of wood; then I went to pick it up.

"Q. You know that the saw was far enough back at that time, far enough back toward the operator, not to hurt you, didn't you? A. Yes, sir.

"Q. You knew where the saw was at that time, didn't you? A. I knew it was safe to pick it up.

"Q. And the reason it did hurt you was that the operator let it go back towards you? A. I don't know.

"Q. Well, you know it came back towards you while you had your hand in there, don't you? A. I don't know that; no, sir.

"Q. Well, do you mean to say that at the time you put your hand in there the saw was held back toward the operator? A. I don't know whether he was holding it back there. It was up, and there was a space where I could reach in and get this piece of wood.

"Q. With entire safety, if he had held the saw back there, couldn't you? A. If it would have

"Q. Let me ask you this: You saw the saw when you started to put your hand in there, didn't you? A. Yes, sir.

"Q. And it was back in a place where it was completely safe at that time for you to put your hand in there, wasn't it? A. Yes, sir.

"Q. And you put your hand in there, and while you had your hand in there this man running the saw let the saw go back towards you, didn't he?

A. That I don't know.

"Q. You didn't see that? A. See what? "Q. See him let the saw back towards you? A. No, sir.

"Q. You certainly didn't reach your hand away over where the saw had been when you put your hand in there? A. I don't think so. I reached for the piece of wood, like you would reach for a lead pencil, or something, to pick it up.

hand in there, was in a place of perfect safety, "Q. And the saw, at the time you put your as far as your reaching in there was concerned, wasn't it? A. I thought so.

"Q. It was some distance away, wasn't it, Mr. Wagner? A. I thought it was far enough away to be safe.

"Q. And it was a considerable distance away, wasn't it, over towards the operator? A. I don't know how far it was. It was about that much space for me to reach in (illustrating). "Q. A space of about two feet, wasn't it? "Mr. Williams: There was a space of two feet, then, approximately, between where you put your hand in there and that saw, at the time you put it in, wasn't there, the distance you have indicated there? A. About like that; yes (illustrating).

"Q. You didn't reach over that distance and put your hand up against that saw? A. I don't think so.

"Q. What happened was, the operator put the saw back and caught your hand; isn't that "Q. Didn't you keep your eyes on the saw? true? A. I don't know that. I was cut. I A. No, sir. don't know how I got cut.

"Q. Did you keep your eye on your hand? A. No, sir.

"Q. Where did you keep your eye, then? A. Looking at the piece of wood I was going to pick up.

"Q. You hadn't told this operator at all that you were going in there after that piece of wood, had you? A. No, sir.

"Q. And you had never before, so far as you remember, ever gone in there for a piece before,

as long as you were working with this man? | were running that saw? A. If I did I would A. Not that I can think of; no, sir. have prevented it.

"Q. You were supposed-you took out the sawdust, didn't you? A. When I was told to; yes, sir.

"Q. You took it out from time to time? A. Whenever Mr. Broderick told me, I cleaned it

out.

"Q. You never took it out until you were told? A. No, sir."

"Q. If you would have suspected it, you would have stopped the saw? A. I couldn't; it was too far away from me.

"Q. What was too far away from you? A. There was no tight or loose pulley to shift it

on.

"Q. But that pin swings back and forth? A. I know it does.

"Q. If you had held that saw back- A. It

Broderick, for plaintiff, testified, as fol- would have helped some; he probably wouldn't

lows:

"My business is carpenter; have been doing that all my life. About 34 years actively engaged in that. I worked at the Bevo plant on December 1, 1916, for the Gilsonite Construction Company. I know the plaintiff. On that day he was my helper. I was running a combination rip and crosscut saw. He carried wood to and from the machine. I gave him directions as to what to do while he was at work. The saw was constructed on a metal skeleton frame. This frame was 33 inches high, 37 inches long, measured from the operator's side, and 32 inches wide. Under that framework was set the saw arbor. That picture [Plain tiff's Exhibit A] was like the machine we were using. The saw blade we were using at that time was a 16-inch blade, or near 16 inches. When the saw was pushed back as far from the operator as it would go, its cutting edge was about 61⁄2 inches from the top of the shaft on that side. When the plaintiff was hurt, we were cutting nail boxes on a rush order. The general carpenter foreman had instructed me to cut the material for 50 nail boxes in a hurry. I cut the material as it was brought to me. When the material was cut, plaintiff took it away from me to the carpenters, who were nailing these boxes together. Plaintiff's duty was to keep me in material and keep it away from the saw. I kept him on the jump as near as I could to get out the stuff. I did not see plaintiff at the very instant he got hurt. He was picking up blocks that had been cut from back of the machine, that were thrown off of the back of the table. I saw him stoop down, but I never paid any attention to him. When I cut those blocks on the saw for the nail boxes, if plaintiff wasn't there to pick them up fast enough, they would fall down under the frame or around the frame of the saw on the floor. They were under the machine and all around it on the back; I mean on the back side under the machine and on the back.

*

*

*

*

"Q. Do you know whether or not Tom picked up any blocks from under the machine at the time he got hurt? A. Yes, sir.

"Q. Do you know how often? A. That I can't say at all, the blocks would fall under the machine; I never paid any attention to them; it was his duty to take them away from there.

"Q. The first time you knew of that he ever put his hand under there while it was in motion? A. That is right.

"Q. And every other time he put his hand under there it wasn't in motion; isn't that true? A. I think so; yes, sir.

"Q. Did you know in this case that he was go ing to try to put his hand in there while you

have got his hand cut.

"Mr. Williams: The fact is that, if you had seen him trying to put his hand in there while that thing was in motion, you would have stopped him, wouldn't you? A. I certainly wouldn't have let him get his hand cut off. "Q. You never knew of his doing it before? A. Not while it was in motion."

The testimony as to plaintiff's injuries was as follows:

"My right hand was hurt, and I am righthanded. One finger was taken out of my hand, and one finger cut in half, and two fingers stiff. The middle finger is the one that is torn out. * * Shortly afterwards Dr. T. B. Edwards, who was a company doctor, came and took me to the operating table. They did not operate on me, but took me back to my room. In about an hour they took me to the operating room again and operated on my hand, giving me ether. I woke up in bed in the hospital. While I was in the hospital I suffered. My hand would get inflamed, and swell up, and break open, and when they would dress it in the morning it was all torn apart. They couldn't get the bandages off; they would stick, and when pulled loose they would hurt. * * I was in the hospital about two months continually under Dr. Edwards. After operating on my hand, they put four drains in it, and they kept putting drains in there for a long time; during the time I was in the hospital and for a couple of months afterwards. Before I was injured my hand was perfectly good. At the present time I can't use my thumb and my forefinger at all; my forefinger hurts. I can hook this little finger under something light and lift it up. I was treated by a doctor after I came out of the hospital, and he is treating yet for this injury to my hand. * Two weeks ago a piece of bone was taken out of my hand. There have been about 16 or 17 pieces of bone taken out of it. Maybe one a month; sometimes three a month. The hand would swell up, and get white, and burst open, and a piece of bone would come out."

Dr. D. C. Todd testified:

"I am a physician; have been practicing since 1902. Am connected with the medical department of St. Louis University, instructor in surgical and anatomical department; have examined plaintiff's hand three times, the first time on February 13th of this year. The thumb is anchylosed. The joints are negative, on account of being stuck and glued down. A part of the thumb nail is remaining; the thumb is shrunken, * * * destroyed so far as its function is concerned. The first

(220 S.W.)

Dr. C. E. Schleter, for plaintiff, testified: "I am still treating him. I began to treat him on January 28, 1917. At the first I saw him two times a day for a while, and then every day for a period of seven or eight months, and then twice a week, or three times a week, and later on, now, once a week. His hand is almost practically useless. I removed a little splinter of bone from it about two weeks ago; before that time I had removed some 16 to 20. They were driven in with the saw, so that even an X-ray didn't show them properly. The X-ray showed only 3 or 4 bones, and we got out about 15 or 20. We couldn't go in there and operate on them, so we had to let nature take its course, and they would come to the *surface, and then we could get them. My bill to date, which is reasonable, is about $225."

finger, for the same reason, is anchylosed
* The second finger has been entirely
amputated on his hand. The last joint is off
his third finger, and the second joint of this
third finger is anchylosed or stiffened, because
of scar tissue; but the first joint of this third
finger retains about three-quarters of its flexion.
The fourth finger, or little finger, is approx-
imately normal. There is a large lon-
gitudinal scar in the palm of the hand, but the
palm is shrunken, and its structures plastered
down by the same form of scar tissue, *
and do not allow the hand to perform the
various motions and positions. That has also
resulted in atrophy of the arm. The muscles
of the forearm have for their entire function
the moving of the fingers and the wrist.
The muscles of the forearm are shrinking, be-
cause of no work to perform, and the result is
that the forearm is not functioning, except this
outside long tendon of the little finger seems
still to be werking. The condition I have de-
scribed is permanent."

*

Plaintiff identified the following, Exhibit A, as a correct photograph of the machine on which he was injured, except the board marked A was not then part of the top:

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