7.

Holt v. Shoe Co.

to enable his servant to see while operating dangerous machinery.

:

: Instructions. In an action by a servant for injuries sustained by reason of his hand coming in contact with an unguarded ripsaw, where it was shown that he detached the power and waited the usual time for the saw to stop and in the dim light thought it had done so, whereupon he reached for a strip beyond the saw, and at that instant the electric light diminished so as to render him unable to see, and, in drawing his hand back, it came in contact with the saw, which was still moving, held that an instruction for plaintiff, which submitted the matter of defendant's omission of care to furnish adequate light, was not erroneous on the ground that it was not supported by the evidence, merely because plaintiff testified that the light was ample for the task of ripping, where he also testified that, after detaching the power and waiting the usual time for the saw to stop, he did not discern that it was moving because of the poor light.

8. NEGLIGENCE: Instructions: Submitting Immaterial Facts. An instruction in a negligence case which correctly submits a theory of negligence justified by the evidence is not to be condemned because it requires a finding of additional facts that are not essential to a recovery.

Appeal from St. Louis City Circuit Court.-Hon. George C. Hitchcock, Judge.

AFFIRMED.

Holland, Rutledge & Lashly for appellant.

(1) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the testimony-because there was no proof of any facts that establish liability on the part of the appellant. Bair v. Heibel, 103 Mo. App. 621; Czernicke v. Ehrlich, 212 Mo. 386; Smith v. Box Co., 193 Mo. 715; Lohmeyer v. Cordage Co., 113 S. W. 1108. Because the testimony showed that respondent was guilty of negligence as a matter of law. Williams v. Railroad, 165 S. W. Rep. 788; Maupin v. Miller, 164 Mo. App. 149; Doerr v. St. Louis Brewing Assn., 176 Mo. 547; George v. Mfg. Co., 159 Mo. 333; Beymer v. Hammond Packing

Holt v. Shoe Co.

Co., 106 Mo. App. 726; Kelly v. Calumet Woolen Co., 177 Mass. 128; Chicago Packing & Provision Co. v. Rohan, 47 Ill. App. 640; Railroad v. Post, 170 Fed. 943; Kehoe v. Stern, 114 N. Y. Sup. 14; Newport News v. Beaumeister, 104 Va. 744; Jones v. Moran, 45 Wash. 391; Larson v. Knapp, 98 Wis. 178; Bridges v. Gresham, 111 Ga. 814; Weller v. Consolidated Gas Co., 198 N. Y. 98; Trainer v. Mining Co., 243 Mo. 373. (2) The court erred in giving instruction number 2 at the instance of respondent: (a) Because said instruction states generally that it was the duty of appellant to furnish respondent a reasonably safe place in which to work instead of limiting the duty to the specific acts of negligence set out in the petition. Adolph v. Columbia Pretzel B. Co., 100 Mo. App. 199; Feary v. Railroad, 162 Mo. 75; Chitty v. Railroad, 148 Mo. 64; McManamee v. Railroad, 135 Mo. 446; Waldheir v. Railroad, 171 Mo. 314; McCarty v. Hotel Company, 144 Mo. 397. (b) Because said instruction states that it was the duty of appellant under the common law to guard the saw in question, whereas under the common law no such duty exists. Bair v. Heibel, 103 Mo. App. 621; Lohmeyer v. Cordage Co., 113 S. W. 1108; Czernicke v. Ehrlich, 212 Mo. 386; Smith v. Box Co., 193 Mo. 715. (c) Because said instruction predicates recovery upon the alleged negligence on the part of appellant to furnish reasonably adequate light when there was no evidence of any negligence on the part of appellant in this regard. Stone v. Hunt, 114 Mo. 66; State v. Hope, 102 Mo. 410; Evans v. Interstate Co., 106 Mo. 594; State v. Brown, 145 Mo. 680; Wilkerson v. Eilers, 114 Mo. 215; Yarnell v. Railroad, 113 Mo. 570; Waldhier v. Railroad, 89 Mo. 106; Woods v. Campbell, 110 Mo. 572. (d) Because by said instructhe jury were erroneously charged in reference to the defense of contributory negligence. (3) The court erred in giving instruction number 3 at the instance of respondent: (a) Because there was no evidence of

Holt v. Shoe Co.

any violation of the statute of the State of Missouri in reference to guarding dangerous machinery. (b) Because the said instruction improperly eliminates the defense of contributory negligence where a violation of the statute is claimed. Huss v. Heydt Bakery Co., 210 Mo. 44. (4) The court erred in refusing to give instruction number 15 offered by appellant. Where there is no evidence to sustain a charge of negligence contained in a petition it is the duty of the court at the instance of the defendant to take such issue from the jury. Chrismer v. Bell Telephone Co., 194 Mo. 189. (5) The court erred in refusing to grant a new trial because the verdict of the jury was excessive.

Leahy, Saunders & Barth for respondent.

(1) Concerning the issue of negligence: (a) All of the evidence establishes a violation of the statute of the State of Missouri in reference to guarding dangerous machinery (Sec. 7828, R. S. Mo. 1909). This constitutes negligence per se. Stafford v. Adams, 113 Mo. App. 717; Millsap v. Beggs, 122 Mo. App. 1; Lore v. American Mfg. Co., 160 Mo. 608. Respondent's instruction 3 correctly declared the law with reference to the statutory requirements. Nor was the defense of contributory negligence eliminated. The court gave, at the request of appellant, at least five separate instructions on the issue of contributory negligence, being instructions numbers 6, 7, 8, 10 and 11. (b) In addition, there was evidence of appellant's negligence in failing to exercise reasonable care in furnishing the respondent a reasonably safe place in which to work. Respondent was placed at work in a dark basement and was made to trust to the efficiency of a single incandescent light. Malkmus v. St. Louis Portland Cement Co., 150 Mo. App. 446. Respondent's instruction 2 was also proper. It simply required the jury to find an additional fact of negligence, and as to this appellant

Holt v. Shoe Co.

cannot complain. (2) Concerning the issue of contributory negligence: (a) On the question of the respondent's alleged contributory negligence precluding him as a matter of law, every reasonable intendment to be drawn from the evidence offered by him must be indulged in his favor and the evidence introduced in his behalf regarded as absolutely true. "When more than one inference can be fairly drawn from the facts as to his care or want of care, the question of contributory negligence is for the jury." Shamp v. Lambert, 142 Mo. App. 567; Heine v. Railroad, 144 Mo. App. 443; Meng v. Railroad, 108 Mo. App. 553; Hollweg v. Bell Telephone Co., 195 Mo. 149; Eckhard v. St. Louis Transit Co., 190 Mo. 593; Gratoit v. Railroad, 116 Mo. 466; Troll v. Drayage Co., 254 Mo. 332. (b) Respondent was injured while under the impulse of a sudden shock or surprise occasioned by the unexpected dimming of the single light furnished him while working at the unguarded saw. This light became dim while. respondent was in the very act of reaching over for his strips. It is established law that under such conditions contributory negligence will not be inferred as a matter of law. Dutzi v. Geisel, 23 Mo. App. 676; Carney v. Brewing Association, 150 Mo. App. 437; Dean v. Railroad, 156 Mo. App. 634; Davidson v. Railroad, 164 Mo. App. 701; Jewell v. Manufacturing Co., 143 Mo. App. 200; Dickson v. Railroad, 124 Mo. 140; 3 Labatt, "Master and Servant" (2 Ed.), sec. 1235; Shearman and Redfield, "The Law of Negligence" (6 Ed.), secs. 85, 213; Beach on "Contributory Negligence" (3 Ed.), sec. 40. The situation is not one where a plaintiff deliberately took the chance of injury. There was no "groping in the dark." The issue of contributory negligence in like cases wherein a plaintiff was put to work on unguarded or dangerous machinery has been left as a question of fact for the jury. Stafford v. Adams, 113 Mo. App. 717; Millsap v. Beggs, 122 Mo. App. 1; McGinnis v. Printing Co., 122 Mo. App. 227; Adolff v.

Holt v. Shoe Co.

Columbia Pretzel & Baking Co., 100 Mo. App. 199; Malkmus v. Cement Co., 150 Mo. App. 446; Trent v. Printing Co., 141 Mo. App. 437; Ludwig v. Cooperage Co., 156 Mo. App. 117; Lobban v. Railroad, 159 Mo. App. 464.

NORTONI, J.-This is a suit for damages on account of personal injury received through the negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.

Plaintiff lost a finger by means of a ripsaw installed in defendant's basement and sues under the statute requiring dangerous machinery to be guarded.

It appears plaintiff was a carpenter in defendant's employ and among other things worked about a ripsaw in the basement. The ripsaw was installed in a table about four feet wide and twelve feet long and propelled by motive power attached. The table and ripsaw stood in the basement of defendant's building, which was more or less dark. It appears that the basement was lighted by two small windows, about forty feet distant from the work table, and one incandescent electric light suspended from the ceiling some three or four feet from the saw. The evidence tends to prove that the light was poor, but plaintiff said it was sufficient to enable him to see when operating the saw. At the time of his injury and immediately before, plaintiff had been using the saw to rip a number of strips and finished that task in so far as the ripping was concerned. Thereupon he pulled the lever through which the power was disconnected and waited for a minute and a half or two minutes for the saw to stop. The saw, it is said, was circular in character and about fourteen inches in diameter. It was installed about the center of the top of the table and as much as five inches of it protruded above the top. When in operation, of course, it revolved rapidly and the evidence is that it usually stopped and became stationary about a