Bair v. Heibel
77 S.W. 1017
Mo. Ct. App.
1903
Check Treatment
GOODE, J.

(аfter stating the facts as above).— Respondent’s counsel insist in their brief that this is an action founded on common law negligence; not one controlled by the statute requiring dangerous machinery to he guarded. We question whether a casé was *632made out at common law; for it would be doubtful but for tbe statute, if appellants were under obligation to protect the cog-wheels by guards, negligеnt in failing to guard them, or responsible for the accident. It seems there is no rule of the common law requiring dangerous machinery to be fenced or guarded and that the master is not answerablе if a servant of full capacity is injured in consequence of working about unguarded machines. Schroeder v. Car. Co., 56 Mich. 132; Townsend v. Langlese, 41 Fed. 919; Sullivan v. Mfg. Co., 113 Mass. 396; Clarke v. Barnes, 37 Hun 389; Stephenson v. Duncan, 73 Wis. 404; Sanborn v. Railway, 35 Kan. 292; Lore v. Mfg. Co., 160 Mo. 608. The master might be liable for permitting a young and inexperienced person to be exposed to such a hazard; and when an accident of this character happens, in determining the common law liability of the master, the age, capacity, experience and knowledge of the danger possessed by the injured minor bear on the problem as establishing or overthrowing the defense of assumed risk. . But Bair was seventeen years old, had had experience while working three months with and near the machine, knew the cogs were unguarded, that there was risk of getting caught in the wheels, that he needed to be careful to keep his hands or person free from contact with them, and fully appreciated the danger, according to his own statement. According to his testimony, too, it was part of his regular employment to assist in front of thе planer when called on. If there was no duty to screen the cogs, and it seems from the foregoing authorities and others that might be cited, there was none independent of the statute, Bair’s injury would appear to have happened in the course of his regular employment, as the result of a risk incident thereto, rather than from any negligence :of the appellants. If his case is to stand on the common law alone, it falls within the scope of the cases cited above, and is nearly identical in facts with the first four. The unguarded cog-wheels were in plain view and so *633obviously dangerous that tbe respondent neither needed instruction regarding their danger, nor lacked capacity to realize it. The specification of negligence that Bair was inеxperienced and nninstrncted as to the danger of the machinery and would have escaped injury if ‍‌​‌‌​​​​‌​​​‌​‌‌‌​​‌​​​‌‌​‌‌‌​​‌​​​​‌‌​‌​‌​​​​‌‌‍he had been instructed, was not made good. Neither was the specification made good that the machine was operated in a negligent manner and so' as to injure him, unless that specification is taken to mean that it was operated carelessly because oрerated without a cover.

It may have been for the jury to decide whether Bair sufficiently understood the risks incident to operating the machine to realize the hazard of attempting to fоrce the board into it; but certainly he did not need to be told the danger of contact with the cog-wheels. In fact, failure to instruct him in regard, to the danger of the cog-wheels had nothing to do with thе injury; which, if we believe him, resulted from his losing his balance while pushing the board and lurching against the wheels; not from ignorance that they were dangerous. On the contrary, if we accept the version of the appellants, Bair simply laid his right arm in a careless manner against the wheels and was caught; a result he knew enough to anticipate if he had been thinking what he was doing'. What part then, does omitting to instruct him concerning the dangerous character of' the machine play? We can not see that that pretended neglect of duty by the appellants has any relevancy.

But а statute of the State bears directly on the case, and we can not ignore it in determining this appeal, although the respondent’s counsel, for some reason, repel statutory help. The circuit court founded its in- . structions on the statute, as is manifest from reading them. Nor is it of any moment that the petition makes-no mention of the act, since it is a public one, and the allegations of the petition sufficiently state a cause -of .action based on the appellants”failure to comply with its requirements:

*634“The belting, shafting, gearing and drums, in all manufacturing, mechanical and other establishments in this State when so placed as to be dangerous to persons employed therein or thereabout while engaged in "their ■ordinary duties, shall be safely and securely guarded whеn possible; if not possible, then notice of its danger ■shall be conspicuously posted in such establishments.” R. S. 1899, sec. 6433.

The purpose of that statute is to provide for the safety of employеes in a mode which the ‍‌​‌‌​​​​‌​​​‌​‌‌‌​​‌​​​‌‌​‌‌‌​​‌​​​​‌‌​‌​‌​​​​‌‌‍common law does not; as was decided in Lore v. Mfg. Co., supra, where it was said:

‘‘ The act is remedial and salutary. The' purpose of the Legislature was to preserve the lives and limbs of those whose daily life is spent working on and about machinery wielding irresistible mechanical power, and was obviously intended to make plain the duty of the master to his servants emрloyed around or about dangerous machinery and to modify the common law doctrine that in the absence of a statute the master was not bound to fence his dangerous machinery.
“A failurе to comply with such a statute is negligence. As said by the Court of Appeals in Colliott v. Mfg. Co., 71 Mo. App. 171; 'The failure of the master to so guard the gearing, etc., of his machinery would be a violation of a statutоry duty, and be negligence per se.’ The character of the required guards is defined by the statute ‍‌​‌‌​​​​‌​​​‌​‌‌‌​​‌​​​‌‌​‌‌‌​​‌​​​​‌‌​‌​‌​​​​‌‌‍itself; they are required to ‘be safe and secure. ’ ”

The facts of this action, as sworn to by the respondent, are not materially dissimilar to the facts in the Lore case.

It was the duty of the appellants to protect the cogwheels attached to the planer if this could be done; that is if it was practicable and consistent with the effective operation of the machine. Whether it could or not was a fact for the jury to decide. There is evidence iii the record tending tо show it could be done without inconvenience to the plaintiff; but the expert witness spoke *635dubiously and without having seen the planer or the factory. The jury should be instructed to find whether it was possible or not. If it was, a case of negligence was made out against the appellants which laid them liable for damages for respondent’s injury, unless his own carelessness caused the injury. The instructions were ioo imperative in taking for granted that the wheels should have been guarded; because, we think, that was a matter the law does not pronounce on absolutely. It was a fact to be found, as the evidence stood.

If it was practicable to guard the wheels, the appellants were negligent and the respondent did not assume the risk of injury by working around them in their exposed state. Lore v. Mfg. Co., supra. Certainly the doctrine of assumption of risk does not stand in the way of respondent’s recovery ‍‌​‌‌​​​​‌​​​‌​‌‌‌​​‌​​​‌‌​‌‌‌​​‌​​​​‌‌​‌​‌​​​​‌‌‍for an injury suffered from appellants’ disobedience of a statutе intended to protect him and other employees. If the policy of the unwritten law, as declared in adjudged cases, forbids a master to exempt himself by an express contract from liаbility for a negligent injury to a servant, a fortiori, he may not become exempt by the servant’s implied assumption of the risk of injury from a danger to which the master exposed the servant in disregard of the law’s policy as declared by statute. A contract to relieve a master from the consequences of his negligence is ineffective, because it is supposed to be contrary to the рublic weal. Blanton v. Dold, 109 Mo. 64. And it is surely negligence in the master to disregard a statutory mandate as to means to be taken for the safety of his servants, whatever may be thought of applications which have been made, sometimes, of the rule in regard to contracting against negligence, so as to render the master liable when the servant was injured by an obvious risk taken without protest. In so fаr as this rule is operative, the doctrine of assumed risk must be inoperative.

The true question is as to the respondent’s contributory negligence; and of that he did not convict himself *636by simply working around the uncovered cog-wheels, unless the danger was so great that a prudent ‍‌​‌‌​​​​‌​​​‌​‌‌‌​​‌​​​‌‌​‌‌‌​​‌​​​​‌‌​‌​‌​​​​‌‌‍person of his years and capacity would have declined to face it. Settle v. Railway, 127 Mo. 336; Pauck v. Provision Co., 159 Mo. 467. Assuredly, the court would have acted unjustly had it declared the risk to be that extreme, as a legal deduction. A finding by the jury that it was could hardly be upheld. Hence, there was no wrong done in refusing the instruction for a verdict in defendants ’ favor.

Contributory negligence might be charged against the respondent on another ground, namely; that he carelessly laid his arm against the cogs, as the appellants’ witnesses swore. The court so instructed and submitted that defense to the jury, as was proper.

Besides the error of assuming the cog-wheels could be guarded, which appears in the first of the respondent’s instructions, thе third and fourth instructions for bim are erroneous in predicating as a basis for a verdict the possible fact that respondent was not instructed or cautioned as to- the danger. He did not need tо be, to enlighten him; and there was no averment of negligence founded on failure to post a notice, as the statute requires to be done when dangerous machinery can not be guarded. The contention of the respondent and the theory of the petition, were that it was possible to guard the wheels and the appellants ’ duty to do so.

Judgment reversed and cause remanded.

Bland, P. Jand Reyburn, J., concur.