176 Mo. App. 546 | Mo. Ct. App. | 1913
(after stating the facts).— Counsel for respondent have presented a very elaborate brief and argument attacking the original abstract as defective in arrangement in that it does not distinguish matters of record proper from matters of error and exception, and for the omission of evidence counsel claim to be material. As to these and other complaints of the original abstract, we have concluded to disregard them. Appellant has filed an amended abstract which is sufficient for all practical purposes. It was filed without formal leave had," but before the cause was argued and we have concluded to let it stand. So far as it is lacking in setting out all the evidence, that fault has been corrected by respondent and we consider the case on the amended abstract of appellant and on the supplemental one of the respondent.
Counsel for appellant assign eight errors: First, that the court should have sustained defendant’s motion requiring plaintiff to elect upon which count ho would stand. Second and third, that the peremptory instructions asked at the end of plaintiff’s testimony in chief and at the end of all of the testimony, should have been given. Fourth, that all the evidence shows that' the plaintiff has no cause of action against de
In their reply brief, counsel for appellant attack' an instruction given at the instance of respondent. As no such point is set out in the errors assigned, we decline to consider this.
Taking up these assignments as nearly as possible in their order, the first assignment of error is not maintainable for several reasons. The first count in the petition is for damages sustained by failure of defendant to comply with section 7828, Revised Statutes 1909, charging that defendant was liable in that it had failed to guard certain shafting. The second count proceeds upon the employer’s violation of his common law duty to use ordinary care in furnishing the employee with a reasonably safe place in which to work. Both counts refer to the same accident, with very slight variations of the form of statement, merely such variations as necessary to distinguish an action on the statute from one at common law. We find no inconsistencies in them.
In the next place, even if they were inconsistent and subject to attack for that, defendant lost the benefit of the objection by pleading over.
Over and above these reasons, the very same line of evidence was admissible under either, but there could be no recovery on both. Recognizing this the court, at the instance of the defendant itself, at the close of the case, directed the jury to find for defendant on the second count. Without regard to the action of
The remaining six assignments can practically be treated together. In point of fact they go to plaintiff’s right to recover on the facts as pleaded and as in evidence. That involves the construction of section 7828, Revised Statutes 1909.
Preliminary to going into that, it is to be noted that learned counsel for appellant attack in this court for the first time, not having raised the question in the trial court, the constitutionality of the act in which this section 7828 was contained. A long line of decisions in this State settle beyond all room for argument the proposition that if parties invoke the Constitution as against any law, they must do so at the first opportunity and in the trial court. Moreover, the learned counsel must have overlooked the plain, mandatory constitutional provision which ordains that any and all cases involving the construction of the Constitution of this State are within the exclusive jurisdiction, on appeal or writ of error, of the Supreme Court of the State and are not within the jurisdiction of this court.
We are relieved of all embarrassment as to its constitutionality, however, in proceeding to the consideration of this section involved or of the act in which it first appeared, by the judgment of our Supreme Court in Simpson v. Witte Iron Works Co., 249 Mo. 376, 155 S. W. 810. There our Supreme Court, with this section 7828 under consideration, held it constitutional. In Williams v. Atchison, Topeka & Santa Fe Ry. Co.,
As covering another point made by counsel in argument against the petition in that it lacked an averment of notice by the factory inspector to guard this machinery, it is further said by our Supreme Court in the Simpson case, supra, Judge Lamm, it is true, stating it in an opinion in which is in part in concurrence and part in dissent with that of Judge Bond, that “on full consideration we all agree that our opinion in the Williams case, in so far forth as it dealt with the question of notice, was an inadvertent side step into obiter by traveling further than was called for;” and after so disposing of what was said on that in the Williams case, Judge Lamm, speaking for all the court, as we understand, concludes: “The sum of it all is that on the manifold grounds suggested it should be held that a notice from the inspector, under section 7842, was not a condition precedent to a right of action in plaintiff, under section 7828.” It is due to counsel for appellant to say that in the argument before us by one of those counsel, as well as by the reply brief filed by counsel, they have admitted that the questions of the constitutionality of this section and of the necessity of notice by the factory inspector to the employer to put in guards for shafting, belting, etc., in view of the decision of our Supreme Court in the Simpson case, are no longer in this case.
The count upon which this verdict and judgment rests, to repeat, is bottomed on section 7828, Eevised Statutes 1909. It reads: “The belting, shafting, máchines, machinery, gearing and drums, in all manufacturing, mechanical and other establishments in this State, when so placed as to be dangerous to persons
Several cases have been before our courts prior to the amendment of 1909. The reason for the amendment which added the words “machines, machinery,” is doubtless to be found in them. Thus our Supreme-Court had held in Smith v. Forrester-Nace Box Co., 193 Mo. 715, l. c. 738, 92 S. W. 394, decided February 26, 1906, that this section of the statute, as originally enacted applied to guarding of “belting, shafting,, gearing and drums” alone, and did not cover machinery or machines generally. This was followed by Czernicke v. Ehrlich, 212 Mo. 386, l. c. 394, 111 S. W. 14, decided May 19, 1908. So held our court in Cole v. North American Lead Co., 130 Mo. App. 253, 112 S. W. 753, decided March 31, 1908, and our Supreme Court in the same case, 240 Mo. 397, 144 S. W. 855, decided February 29, 1912, the cause of action accruing before-the amendment of 1909. The effect of the amendment of 1909 was to broaden the scope of the original enactment and take in all machines and machinery in all. manufacturing, mechanical and other establishments, in our State, when so placed as to be dangerous to-persons employed therein or thereabout while engaged in their ordinary duties.
Learned counsel for appellant in their reply brief claim that the words “therein” and “thereabout” are restrictive and do not include “.the machines and implements upon which the employee in the discharge of his ordinary duty was working;” that if it was in
With the exception of the words “machines” and “machinery,” this section 7828 appeared for the first time in our law' by the Act approved April 20, 1891 (Laws 1891, p. 159), the act being entitled “Inspection: Health and Safety of Employees.” It will be noticed that the article in which section 7827 now appears is entitled “General Provisions for Health and Safety of Employees.” This section 7828, omitting the words “machines” and “machinery,” was section 3 of this Act of April 20, 1891. Our General Assembly had entered upon the line of protection of eim
One of the earlier cases arising under this particular section of the law was Huss v. Heydt Bakery Co., 210 Mo. 44, 108 S. W. 63. In that case it appears that contributory negligence as well as assumption of risk had been pleaded. It is said (1. e. 54) in the opinion of the majority, that notwithstanding the statutory duty imposed and notwithstanding there had been a failure to perform that duty, “yet the defendant, so failing in the performance of the statutory duty, can avail himself of the plea of contributory negligence/’ The court further said, however, as to the plea of assumption of risk, that “it must rest upon a different basis, and we do not discuss it, for the reason that while the court refused to strike out such plea in the answer, yet, when the case was submitted to the jury, the instructions submitted no such issue. What we do say is that the contributory negligence of the- plaintiff in such cases is held to be a proper defense, and this instruction properly covers that phase of the case.” There was a very vigorous dissenting opinion filed in this case by Judge Woodson. It commences at page 59 and in clear and forceful language gives a very broad construction to this section. Briefly it may be said of it, that after announcing the proposition that to understand the true meaning of the statute, we must first understand what the law was upon that subject prior to the passage of the act, and in that light look at the evil which the Legislature intended to abolish by the enactment, the judge holds that such construction should then be given the act as would carry out
We cite and quote from this dissenting opinion of Judge Woodson in as much as learned counsel for appellant, in their reply brief, have referred to that dissenting opinion as having been afterwards adopted by the court in Cole v. North American Lead Co., 240 Mo. 397, 144 S. W. 855, as the correct construction of the statute. We agree with counsel in this, for in Cole v. North American Lead Company, Judge Woodson, with the approval of all the members of Division No. 1, repeats his argument as to the true construction of section 7828, as that section read prior to the amendment of 1909. It is to ,be borne in mind that in the Cole case the accident occurred and the action was brought before the amendment of section 7828 by the Act of 1909, so that the decision turned on the proposition that the part of the machinery through which the accident had occurred to the plaintiff was not a part of it which fell within the provisions of that section prior to its amendment in 1909. The plaintiff in the Cole case sustained his injury by reason of an unguarded “planer” which was part of the machinery in the operation of which he was engaged, and the Supreme Court held, as had our court in the same case (see Cole v. North American Lead Co., 130 Mo. App. 253; 112 S. W. 753), that the “planer” in the operation of which the plaintiff had been injured, was in
In Williams v. Atchison, Topeka & Santa Fe Ry. Co., supra, as before noted, it was held that section 20 of the Act of April 20,1891, now section 7844, Revised Statutes 1909, was void as covering a subject not embraced within the title of the Act. It is true that it is further held in that case that there was no evidence to show that any notice had been given by the factory inspector to make alterations or to change the platform, the defect in. which was alleged to have been the cause of the accident, but as we have seen in the later case of Simpson v. Witte Iron Works Company, supra, this part of the opinion was held to be obiter and that the act itself, in spite of this particular section concerning platforms of railways, was constitutional. We may accept it then as the settled construction of this section 7828 of the statute, that it is highly remedial and that although it changes the common law, it is to be liberally construed in favor of the safety of the lives and limbs of employees, and that this was the object had in view. Its presence in the article enlarged in its scope by the amendment, in fact the whole ’ article itself, in line with other articles in the same chapter of the revision in which this article is found, afford unmistakable evidence of the broad purpose held in view by our legislators in providing for the safety of the lives and limbs of our citizens engaged in and about the factories and workshops of the State. As is commonly the case, the people through their representatives in the Legislature, are in advance of the courts in hewing out new laws to meet new. conditions and in the application of new remedies to the dangers which those conditions develop. That is eminently proper, for the legislators are the makers of the law, the courts are merely to construe them. It behooves the courts, while not lagging, to be conservative, and not anticipate by radical departures, action which they
The disinclination of lawyers and jurists to depart from the learning and traditions of the common law is natural. At the outset of his career the lawyer even of this day, no less than of past generations, has placed in his hands his Blackstone and his Kent, sages who have expounded the common law and derived their inspiration from its teachings. This is well illustrated in the decision of the Court of Appeals of the State of New York in Knisely v. Pratt, 148 N. Y. 372. It-is true that that was a case which was not founded on the statute of New York, known, as is ours, as the ‘1 Factory Act, ’ ’ adopted by New York in 1880. Instead of being general in its requirements as to all employees, that statute was then confined to regulation for the employment of women and children in manufacturing establishments and it provided for the appointment of inspectors to enforce it. [See Laws New York 1890, chap. 398, p. 753.] The plaintiff in that case was a woman and over twenty-one years of age and the statute only applied to women under the age of twenty-one years, so she did not come within the statute. "While the action was not brought upon the statute, the statute was referred to at the trial nisi and on argument before the Court of Appeals, so that the latter court stated (1. c. 376) that it would “consider this case as presenting the question whether the plaintiff is entitled to recover by reason of this statute, even if under the
“If, then, the doctrine of the assumption of risk rests really upon contract, the only question remaining is whether the courts will enforce or recognize as against a servant an agreement express or implied on his part to waive the performance of a statutory duty of the master imposed for the protection of the servant, and in the interest of the public, and enforceable by criminal prosecution. We do not think they will. To do so would be to nullify the object of the statute. The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract; and it would entirely defeat this purpose thus to permit the servant ‘to con
In line with what is here said as. to nonassumption of risk in a case within the statute, is the case of Collins v. Star Paper Mill Co., 143 Mo. App. 333, 127 S. W. 641, where at page 345, Judge Broaddus states the rule practically as laid down by Judge Taft, citing Missouri authorities in support of it. In passing we say of this Narramore case that it was urged that because the omission to provide safeguards was a crime and punishable as such, that therefore resort must he had to the criminal provisions alone and no civil right of action was conferred upon the employee. It was in answer to this contention that Judge Taft' made the above remarks. They are as applicable, on general principles, under our statute as under that of Ohio. Further along in his opinion, Judge Taft treats of the distinction between the assumption of risk and contributory negligence, holding, as our court did in the Iluse case, that the statute did not provide against contributory negligence.
In St. Louis Cordage Co. v. Miller, 126 Fed. 495, the United States Circuit Court of Appeals' held that thi k statute of ours does not abolish the defense of assumption of risk. Judge Thayer dissented. In Lohmeyer v. St. Louis Cordage Co., 137 Mo. App. 624, 119 S. W. 49, our court adopted the view of Judge Thayer. That opinion is in line with that of Judge Taft in the Narramore case. The Lohmeyer case came to us on transfer from the Supreme Court, as see same case, 214 Mo. 685, 113 S. W. 1108.
"With these rules of construction and interpretation of this statute before us, we are of opinion that plaintiff in this case, respondent here, has, in the first
Without going into the instructions in detail, it is sufficient to say of them that they correctly placed the case before the jury. The defendant asked instructions on the doctrine of assumption of risk which the court properly refused. It asked an instruction on contributory negligence which the court gave, this latter instruction concluding in this language: “And if the jury further finds from the evidence that the plaintiff at the time of the injury did not conduct himself with reasonable and ordinary care in putting on the belt, then the court instructs the jury that plaintiff was guilty of contributory negligence and cannot recover in this case and the verdict must be for the defendant.” In the instructions given at the instance of plaintiff the court defined ordinary care and told the jury at the instance of plaintiff, that in order to find for plaintiff they must find that while engaged in his work he was exercising ordinary care, telling the jury, however, that the burthen of proving contributory negligence was on the defendant. Hence, so far as plaintiff is concerned, we have a petition within the statute, evidence tending to support the petition, and instructions correctly presenting the issue to the jury.
It was in evidence by the testimony of two or more expert mechanics that by the application of very simple devices the danger from the “bucking back” of this belt would have been greatly diminished if not entirely, eliminated. The defendant introduced experts- familiar with these machines. They did not pretend to contradict this testimony in any substantial manner but their testimony was confined to demonstrating that this Mnd of machine, with its shafting and belting was used in exactly the condition found on the premises of defend
¥e are referred by learned counsel for appellant to decisions of our court in Letanovsky v. Friedman-Shelby Shoe Co., 157 Mo. App. 120, 137 S. W. 321, and in Miniea v. St. Louis Cooperage Co., 175 Mo. App. 91,-S. W.-. Nothing said in either of those cases lends support to the contention of the learned counsel for appellant. It is true there are expressions in the opinion of our court in Meifert v. New Union Sand Co., 124 Mo. App. 491, 101 S. W. 1103, and in Strode v. Columbia Box Co., 124 Mo. App. 511, 101 S. W. 1099 which gives some color to the argument of defendant. The facts in those cases, however, were entirely different from those at bar and the point now contended for in this case was not in decision in those cases. We approved the decision in the Strode case and the Lohmeyer case, but in that same opinion we adopted the dissenting opinion of Judge Thayer in the Miller case. There are some expressions in the opinions in the Strode and Meifert cases that go beyond what was necessary to their decision. In so far as they are in conflict with what we here hold, we are obliged to disapprove those expressions.
We are referred to Lang v. Bolt & Nut Co., 131 Mo. App. 146, 110 S. W. 614. There it is held plain
We are also referred by counsel for appellant to Smart v. Wabash Railroad Co., 164 Mo. App. 61, l. c. 65, 148 S. W. 172, as holding “whatever is according to the general usage and ordinary course adopted by those in the same business is reasonably safe within the meaning of the law.” We do not find any such language used in the Smart case and do not think that the opinion justifies any such conclusion. As before remarked, to adopt any such rule would be to allow the custom of those engaged in the business, to nullify the law and strike down all of its safeguards.
While we have not noticed here all the cases cited by the learned and industrious counsel for appellant, we have not overlooked any. We do not follow those not of our own Supreme Court where divergent from the views here expressed; others we do not think applicable.
If we were to accept the argument of learned counsel for appellant, we would be compelled to hold as a matter of law that this belting needed no guards; was not unsafe. That we .decline to do. These are, save in cases where there can be no room for difference of opinion among reasonable men, all questions for the jury. Here it most certainly cannot be said, on the facts in evidence, that this belting was not ‘ ‘ so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties,” and that it was not possible to be “securely guarded.”
On careful consideration of this case and of the facts as well as of the arguments of the learned counsel for the' appellant, we have arrived at the conclusion that the judgment of the circuit court was right. That judgment is affirmed.
