Robert & Price, Phoenix, for appellant.
Moore & Romley, Charles L. Hardy, Phoenix, for appellee.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.
Udall, Chief Justice.
[71 Ariz. 420] This action arose when R. F. Moore, plaintiff-appellant, a building contractor, suffered the loss of three fingers when he accidentally thrust them in a joiner, a mechanically operated machine for planing lumber, on the premises of the defendant-appellee, Southwestern Sash & Door Company. Whether or not the trial court properly directed a verdict for the defendant at the close of plaintiff's evidence is the sole question presented on this appeal.
On the day of the accident plaintiff drove to the mill of defendant with four heavy timbers to have them milled, i. e., planed and smoothed, the timbers having been theretofore marred on delivery to one of
plaintiff's construction jobs. Each of the timbers, according to plaintiff's testimony, weighed 400 or 500 pounds. Upon arrival at the mill yard of defendant, plaintiff was informed by defendant's foreman, Tom Suffolk, that not enough men were available to carry the timbers into the mill. The foreman requested Moore's assistance and plaintiff agreed to help. Excerpts from his testimony relative thereto are as follows:
"Q. What did he (the foreman) say, and what did you (defendant) say? A. He said they were heavy. He didn't think he had men enough to carry them in. 'I believe I will have to get you to help me take them in.' I said 'I will. We need them.' So he went, got some boys and come out.
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"Q. Did he ask you to help mill them? A. Yes, sir.
"Q. Where was that conversation? A. As we were going in, as I recall, that is when he asked me to help ...