149 Va. 720 | Va. Ct. App. | 1928
delivered the opinion of the court.
A. D. Bell, plaintiff in the court below, was employed as “material man” at the “Clopton” car-repair shops of the Atlantic Coast Line Railroad Company (hereinafter referred to as defendant), and while so employed and engaged in the performance of his duties, one of his hands was cut off by a rip-saw installed in said shops, which he was at the time operating.
He subsequently brought this suit and was awarded $7,500.00 damages by the jury, for which amount the court entered judgment, and the defendant company is now here complaining of that judgment.
Plaintiff’s account of the accident, as related in his testimony at the trial, is as follows:
“On November 8, 1923, as I was passing along by the saw table which this saw was under, I seen Mr. Hughes standing in front of this rip-saw with a board in his hand. I walked up to him. I said:‘Mr. Hughes,
Plaintiff further testified that when the board began to buck, he stepped forward so that he could hold it down on the saw table, and thereby keep it from breaking loose and flying back and striking him, as it was liable to do.
The negligence charged against the defendant, and chiefly relied on, is that it failed to properly guard the saw by which plaintiff was injured, as required by section 1830 of the Code known as the safety appliance act. This statute, so far as applicable, provides:
“* * * All vats, elevators, saws, planers, cogs, gearing, belting, shafting, set screws, shapers, corner machines, shall be properly guarded. No person shall remove or make ineffective any safeguard around or attached to machinery, vats or elevators while the same are in use unless for the purpose of immediately making repairs thereto, and all such safeguards so removed shall be promptly replaced. If a machine or any part is in a dangerous condition, or is not properly
It is contended by counsel for defendant that the evidence is insufficient to show that the saw in question was not “properly guarded” within the meaning of the statute; and that is the first question presented by the petition for writ of error for our consideration.
Considering the evidence as upon a demurrer, it shows that at the time of his injury plaintiff was using the saw to rip a board eighteen feet long, three and one-quarter inches wide, and seven-eighths of an inch thick, by the operation of what is called “free cutting,” or “cutting to the line.” This operation, as partly described by the plaintiff, consists of pushing the board against the saw in order to rip it lengthwise to a line marked on the board, without any guide or device to control it except the operator’s hand. • This particular saw was revolved by a shaft running under the table to which it was attached, and protruded above the table five and one-half inches. The table was about ten inches wide, thereby extending about five inches on each side of the saw. The guard provided by the defendant consisted of a steel frame covered with a strong wire netting, which could be raised or lowered by means of a bracket. When the appliance was lowered as far as it would come, it stood about one-half an inch above the saw, and six inches above the saw table. The bottom of the guard was not curved, but extended straight over the top of the saw for about two inches beyond each edge of the same.
There is abundant evidence going to show that after the guard in question was lowered as far as it would come, it left the saw unguarded for a space of five inches or more between the guard and the board
We think the evidence is amply sufficient to warrant the jury in finding, as it did, that the rip-saw was not properly guarded as required by the statute.
The statute under consideration has been twice considered by the United States Circuit Court of Appeals, and there are numerous decisions construing the statutes existing in other States, containing similar or identical provisions. In effect the decisions hold that it is the purpose of the statute requiring the machinery specified to be properly guarded; that the master shall place such safeguards around it as are practical and necessary for the protection of his employees from all dangers which might be reasonably anticipated from its operation; that violation of the statute on the part of the master constitutes negligence ; and that the question of whether the instrumentality is or is not properly guarded is a question of fact for the determination of the jury.
In the case of E. I. du Pont de Nemours & Co. v. Briscoe, 254 Fed. 962, in which the United States Circuit Court of Appeals had the Virginia statute before it for consideration, the court said:
“The defendant argues it would have done no good to guard the vat, because it says the guards would have been around the outside of the tank, and it was not there that the plaintiff fell, and that it was impracticable to guard the drainage platform upon which plaintiff slipped, or the stringers which he habitually traversed, and upon which he occasionally worked.
In the case of Foster v. E. I. du Pont de Nemours & Co., 289 Fed. 65, where the United States Circuit Court of Appeals again had section 1830 of the Virginia Code before it for consideration, the court said:
“The statute should have a construction broad enough to meet the legislative purpose in view. Obviously one of the chief dangers.in the use of vats or tubs frequently filled with hot water or acid and then emptied from the bottom through a hole into a tub or trough is that the pressure from above may force the water out with such violence as to strike and injure employees working around the vats. This is a danger immediately incident to the operation of the vat, and is as clearly within the provision of the statute as guarding the vat by cover. Properly guarded means effectively guarded in view of any danger to be anticipated in the operation of the vai.” (Italics supplied.)
In American Ice Co. v. Porreca (C. C. A.), 213 Fed. 185, where the Pennsylvania statute requiring that “all * * * * saws * * * and machinery of every description shall be properly guarded” was under consideration, the court said:
“That failure on the part of the defendant to comply with the requirements of that statute would constitute negligence is clear. * * *
And in Miller v. Sash & Door Co., 153 Iowa 735, 134 N. W. 411, where another statute similar to this was being construed, the Iowa court said:
“The design of the statute is that something shall be placed near to or over the machine or parts thereof specified in such a manner, and of such material, as to protect employees coming in proximity with or using it from being injured by coming in contact therewith. As said in Kirchoff v. Creamery Co., 148 Iowa 508 [123 N. W. 201]: ‘What such guard shall be is not specified, save in exacting that it shall be proper. According to the lexicographers, “proper” means “fit, suitable, appropriate:” and to be guarded “properly” is to be so covered as to reasonably accomplish the design of guarding.’ * * * * If not reasonably suitable and calculated for this purpose, the cover is not proper, and the proprietor, in omitting to obey the mandate of the statute, is guilty of negligence. * *
In the Missouri case of Simmon v. Brass Manufacturing Co., 298 Mo. page 78, 250 S. W. 76, in referring to the statute of that State, the court said:
“To ‘guard’ such a machine is to provide it with a guard, that is, any device, fixture or attachment designed to protect or secure against injury from it. (Bessler v. Laughlin, 168 Ind. 38 [79 N. E. 1033].) * * * The machine could not have been housed, covered, or fenced and at the same time operated, but it could have been equipped with a safety device which would have secured the operator from injury and that
In Christianson v. Compo-Board Co., 83 Minn, page 25, 85 N. W. 826, 85 Am. St. Rep. 440, where the statute provides that “all saws,” etc., shall be, “as far as practicable, properly guarded, fenced or otherwise protected,” and the plaintiff was injured by a circular saw, the court said:
“The purpose of this statute is obvious. It was intended to protect from personal injury the workmen or employees in any shop, mill, or factory by reason of dangerous machinery therein, and it must be so construed as to give effect to such wise and humane purpose. Therefore, the statute must be and is construed as requiring that such machinery must be so guarded, if practicable, as to protect such workmen, * * * from liability to injury by it.”
See also to the same effect, and holding that violation of the requirements of the statute constitutes negligence, and is a question for the jury: Jones v. American Caramel Co., 225 Pa. St. 644, 74 Atl. 613; Crucible Steel Forge Co. v. Moir, 219 Fed. 151, 135 C. C. A. 49; Variety Iron & Steel Works v. Peak, 89 Ohio St. 297, 106 N. E. 24; Davidson v. Flour City Ornamental Iron Works, 107 Minn. 17, 119 N. W. 483, 28 L. R. A. (N. S.) 332, 131 Am. St. Rep. 433; Koutsky v. Forster-Whitman Lumber Company, 146 Wis. 425, 131 N. W. 1001; Austin v. Shoe Co., 176 Mo. App. 546, 158 S. W. 709.
It is urged that the verdict should have been set aside on the ground that the defendant employed the same means to guard the saw in question as is employed in other mills and shops where such saws are used for “free cutting;” and the rule that “the unbending test of negligence in methods, machinery and
In the case of Jeffress v. Virginia Railway and Power Company, 127 Va. 694, 104 S. E. 393, Judge Kelly, in the course of an elaborate and learned discussion of the above rule and the authorities on the subject, said:
“The general usage of the business in a given situation is admissible as evidence of what is reasonable and proper to be done in that situation, from which along with other (if there be other) pertinent facts and circumstances of the case, the jury are to determine the question of negligence. If there he no conflict of evidence as to the existence of the general usage, and nothing in the evidence tending to show, as to employees, that the usage is not reasonably safe or adequate for its purpose and occasion, ***** then the usage itself is conclusive evidence of the exercise of ordinary care, and no verdict to the contrary should be upheld.” (Italics supplied.)
Among other authorities the opinion in the same ease quotes Sherman and Redfield on Negligence (6th ed.) section 12-a, as follows:
“The custom of others engaged in the same pursuit, though generally admissible as evidence by either party ais tending to show negligence, or the contrary, is not conclusive. What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not;”
Aside from plaintiff’s evidence on the subject, there was a diversity of opinion among defendant’s own witnesses as to the extent to which rip-saws were guarded in the various shops in which they had worked, and as to the character of the device provided for that purpose; one of said witnesses testifying that in three mills
In Schaffer v. Nat. Supply Co., 80 W. Va. 111, 92 S. E. 580, the court quotes 29 Am. & Eng. Eneye. of Law (2nd ed.), page 418, as follows:
In Jones v. American Caramel Co., supra, the court :said:
“The legislative mandate is that machinery of every description shall be properly guarded, and customary disregard of this is but customary negligence, rendering ■every one guilty of it responsible for the consequences resulting directly and solely from it. Ordinary usage which is in disregard of a statutory duty cannot be a test of negligence.”
In Callopy v. Atwood, 105 Minn. 80, 117 N. W. 238, 18 L. R. A. (N. S.) 593, where the statute required the guarding of dangerous machinery where practicable, the court said:
“That saws of this type had never been provided with guards by appellant and other mill men was no excuse for not complying with the statute. It applies to all cases whether guards had been used or not, and there are only two questions to be taken into consideration in determining whether the statute has application to a particular case, viz.: Is the machine dangerous and located in an exposed position? and, Is it practicable to guard it?”
Among other cases holding to the same effect are the following: Kirchoff v. Hohusbehn Creamery Supply Co., 148 Iowa 508, 123 N. W. 210; Reddington v. Blue & Raferty, 168 Iowa 34, 149 N. W. 933; Hochman v. Sifers Candy Co., 104 Kan. 94, 178 Pav. 254; Camen
In referring to the safety appliance statutes in 18 R. C. L. at page 502, the author of the text says:
“Judicial policy opposed such enactments in some instances, and the statutes were virtually repealed by the decisions, but the more recent rulings recognize a non-performance of the statutory duty as negligence on the part of the employer. * * * A failure to comply with the statute is not excused by the fact that the offending appliance is not manufactured with a guard, or that guards are not supplied by any other employers.”
If, however, it be conceded that the defendant’s evidence established the existence of a general usage as to the methods of guarding rip-saws used in “free cutting,” and it had been shown that the saw in question was guarded according to such usage, we do not think that fact would excuse the defendant for its failure to-comply with the statute, as the jury found that it had done.
It is also contended that the verdict should have been set aside because the plaintiff assumed the risk of operating the saw with the guard that had been provided for it. Upon the question of whether an employee assumes the risk of his employer’s neglect of duty when such duty is imposed by statute the decisions, generally speaking, are in serious conflict, not only as between the courts of the several States, but in some instances the decisions of the same State are-apparently inharmonious. The history of- judicial opinion on the subject, and the present prevailing-doctrine is, however, well summed up in 18 R. C. L. pages 679-80, as follows:
“Observing that common law doctrines were not
But whatever may be the conflict of opinion elsewhere, we consider the question to be now settled in Virginia in the adoption of the modern doctrine referred to by the cases of Carter Coal Co. v. Bates, 127 Va. 601, 105 S. E. 76, and Clinchfield Coal Corporation v. Hawkins, 130 Va. 698, 108 S. E. 704.
Judge Sims, who delivered the opinion of the court, after stating that the question was an open one in Virginia, said:
“The same statute and the precise question which we have under consideration was before the United States Circuit Court of Appeals in the case of Pocahontas Consolidated Collieries v. Johnson, 244 Fed. 368, 156 C. C. A. 654.
“In that case Judge Knapp delivered an able and forceful dissenting opinion; but the majority opinion, delivered by Judge Woods, equally able and more convincing to our minds, held that the doctrine of assumption of risk does not apply to the breach of such statutory duty as that in question. We think that is a sound and correct conclusion both upon principle and upon authority. * * *
“When we consider the subject on principle, we see-that if the conclusion just stated be not correct, the-statute may be nullified and set at naught by the-systematic and flagrant violation of it.”
We are unable to see any real force in this argument. Though applying to different classes of employees, both statutes were undoubtedly enacted for one and the same purpose; that is, the protection of employees, and whether they prescribe the particular method or appliance for carrying out this purpose or leave their adoption to the employer, seems to us immaterial. The requirements of the statutes under consideration are equally mandatory; the only distinction between them being that in the instant case the saw was required to be “properly guarded,” and in the Bates Case that a “conspicuous light be carried on the front of each trip or train of cars.” This distinction relates only to the fact necessary to be proved in each particular ease in order to show a violation of duty, on the part of the defendant, considering the purpose of the statutes, and upon principle, we see no reason for making the distinction contended for between the two cases in the application of the doctrine of assumption of risk; which is in accordance with the great weight of the more recent decision.
If, as is also contended, the statute now under
We think it may also be said that all of the above questions were, in effect, set at rest by the case of Clinchfield Coal Corporation v. Hawkins, supra. The statute involved in that case requires all coal mining companies to instruct every employee, whether experienced or not, as to the unusual or extraordinary dangers incident to the work known to or which would be reasonably foreseen by the mine foreman, and also to see that every inexperienced employee works with a man of experience until he has had an opportunity to become acquainted with the ordinary dangers incident to the work. The plaintiff was an inexperienced miner and was placed under the direction of a man of experience as required by the statute, but was not instructed by him as to the dangers of the work, and was injured by a fall of “draw-slate.” One of the defenses was assumption of risk. It was held by the court that although the duty of instructing employees as to unusual and extraordinary dangers, as prescribed by the statute, was merely declaratory of the common law, and the requirement that the employer should see that an inexperienced miner should work with a man of experience was intended to provide a practical method of giving inexperienced miners the instructions which, at common law, it was the duty of the employer to provide, the employer violated its statutory duty in
In view of the Virginia doctrine on the subject as declared in the above eases, we deem it unnecessary to cite further authority, although many influential decisions to the same effect from other States might be referred to.
After careful consideration of all the questions involved, we are of the opinion that the judgment of the lower court should be affirmed.
Affirmed.