73 W. Va. 385 | W. Va. | 1913
On a demurrer to the evidence, proving injury to the plaintiff in consequence of his having fallen, or been thrown, into a rapidly revolving machine, called a “wringer” or “extractor”, while working in the defendant’s steam laundry, the court rendered a judgment in his favor for the sum of $800.00.
An assignment of error is founded upon the overruling of the general demurrer to the original and amended declara
The gist of this count is the alleged wrongful command in the execution of which the plaintiff suffered his injury. Many authorities say a direction or command of a master to his servant to do an act by'which the latter is injured may be held to have misled and impelled him to encounter the danger, and, on that ground, to have relieved him from the common law bar of right of action by assumption of the risk. Labatt Mast. & Serv., sec. 1362. But the declaration founded upon negligence in commanding the doing of a dangerous act should aver the plaintiff’s ignorance of the danger. A direction or command to do that which is obviously dangerous need not be obeyed and, in obeying it, the servant, assumes the risk. Chandler v. Car & Foundry Co., 69 W. Va. 391. Hence to make such a command a wrongful act on the part of the master, imposing liability for injury in obedience thereof, must be a command and direction to do an act the danger of
The gravamen of the second count of the amended declaration is failure to guard the wringer or extractor or provide a cover of some sort for it. It avers the duty to guard the machinery, belting and gearings for the safety of the employees and omission thereof, and then sets forth the circumstances and cause of the injury, the attempt to replace the belt on the pulley, the entanglement with the belt and the consequent fall into the open and unguarded wringer. The statute, section 1 of chapter 19 of the Acts of 1901, serial section 442 of the Code of 1906, requiring the machinery, belting, shaftings, gearings, drums and elevators in all manufacturing, mechanical and other establishments, so arranged and placed as to be dangerous to persons employed therein, while engaged in their ordinary duties, to be safely and securely guarded, if possible. The laundry was an establishment in which machinery, belting and gearings were used and so arranged, according to the averments of the declaration, as to be dangerous to persons employed therein.
All of these words must be considered1 upon the inquiry as to the kind of establishments brought within the purview of the statute. A steam laundry may not be a manufacturing establishment, but it is mechanical in the sense that it is filled with running machinery. Whether this is the sense in which the word “mechanical” was used or not, such a laundry is an establishment “where the machinery, belting, shaftings, gearings, drums and elevators” are so arranged and placed as to be dangerous to persons employed therein.
In some jurisdictions, the rule ejusdem generis has been invoked in the effort to narrow the requirements of such statutes to the particular parts of factories and mills specified in the act, and the general term “machinery” has been treated as meaning only parts of machinery like those specifically named. The form of expression here, however, is not that usually found in clauses deemed to be within that rule. “Machinery” does not follow the words, “belting, shafting, gearing, drums and elevators”. It precedes them and is one of the things enumerated, one of the things specifically mentioned by the statute as falling within its requirements. Of course all machinery, belting, shaftings, gearing, drums and elevators are not required to be guarded, but only so far, and such parts of them, as to make them safe. Under a'statute in which the word “machinery” follows, instead of preceding, the enumerated parts of machines to be guarded, the better view is that the rule does not apply. Cement Co. v. Cooper, 172 Ind. 599; Steel Co. v. Kachwinske, 80 C. C. A. 571; Pein v. Miznerr, 41 Ind. App. 225; Ward v. Lumber Co., 54 Wash. 304; Davis v. Langdon, 11 New So. Wales St. Rep. 149; Labatt Mast. & Serv., sec. 1856.
Under these principles and conclusions, the original declaration and the first count of the amended one are clearly insufficient, and the second count of the amended declaration good; w'herefore the demurrer, being general, was properly overruled.
The facts the evidence proves and tends to prove are as follows: This laundry was operated by a steam engine. The boiler and engine were located in one end of the building, partially separated by partitions from that part of the room in which the washing machines and extractors or wringers were located, and the power with which to operate the washing machines, extractors and other machinery was transmitted from the engine by a line shaft located near the ceiling,
The plaintiff, a man twenty-two years old, had 'been employed in the laundry practically all the time for a period of four years, as tender of the boiler, engine and washing machines. On the morning of the accident, he was directed by the defendant to oil the washing machine located between the extractor and the east wall of the building, and, without slowing down the machinery or stopping the same, he threw the belt connecting the pulley on the line shaft with the washing machine off the pulley, thus stopping the washer, and attempted to oil the same. After doing this and without slowing down the engine or stopping the same, or stopping the operation of the wringer, he climbed on top of the washing machine located near the wringer, but six inches higher, while the wringer was running and the line shaft revolving at pull speed, and attempted to replace the belt connected with the washing machine upon the pulley fastened to the line shaft, and, in making such' attempt, his clothes caught on the line shaft or pulley, which was revolving very rapidly, and when he broke loose from the same he fell into the wringer. He knew, when he climbed on top of the washing machine,
The remaining inquiries, arising upon the facts disclosed by the evidence, are (1) whether the machine was such as should have been guarded; (2) if so, whether the plaintiff, having knowledge of the defendant’s omission of duty, assumed the risk of injury, incident to his service in close proximity to it; and. (3) whether, as a matter of law, his right of action is barred by contributory negligence.
Prescribing no certain, definite or exact standard or test by which to determine whether a piece of machinery is such, by reason of its character and relation to the places of work and duties of servants, as to impose upon the master duty to equip it with a guard or fender for their protection, the statute devolves upon the court and jury the solution of that question by the uncertain and indefinite criterion it sets up, danger to persons employed in the establishment, while engaged in their ordinary duties. In those instances in which the admitted or clearly established facts make the danger so certain and obvious as to leave no room for a difference of opinion about it in the minds of reasonable men, the courts may declare the duty in the particular case as matter of law. The statute imposes a legal duty, when there is such danger as it contemplates, wherefore, if the danger is indisputable, the court, in declaring the duty, does no more than enforce the law evidenced by the statute. Conversely there are many cases in which the courts m!ay say, as matter of law, the master is under no duty to guard a particular piece of
Whether the facts make the question one for decision by the court or the jury, the inquiry involves the character of the machine, or part of the machine, in-question, its relation to the places of work and duties of the servant and the capacity in which the servant was acting at the time o£ the injury, and these facts must be considered in the light o£ the purpose of the statute. It was not the design of the legislature to make employers guarantee safety of their servants. The general duty imposed is to make reasonable provision tor their safety in the manner prescribed. Prom this it necessarily results that there is no duty to provide protection, unless there was reasonable ground for anticipation oE injury. Poster v. Bank, 63 Ind. 351; Bag Co. v. Krentler, 167 Ind. 653; Lore v. Manufacturing Co., 160- Mo. 608; Powalski v. Brick Co., 110 Wis. 461; Martin v. Manufacturing Co., 198 N. Y. 324; Dillon v. Coal Tar Co., 181 N. Y. 215. Just what is meant by the phrase “while engaged in their ordinary duties”, applied by the statute to servants whose protection it contemplates, need not be ascertained for the purposes of this case. The plaintiff was injured while in the discharge of his ordinary duty, unless it can be said the particular act in the doing of which he was injured was out of the line of his duty, or was an extraordinary duty, and that was a question for the jury. No doubt one of its purposes is to deny the protection of the statute to servants injured, when not on
As the contact with the unguarded wringer was sequential in character, the plaintiff having either fallen into it or been thrown into it by the shaft, it becomes necessary to say whether provision against accidents was contemplated by the statute. That it was, is thoroughly established by the authorities. In other words, it is very generally held that the employer must make provision against injury by dangerous machinery in the event of contact therewith as a result of a fall or other similar accident. Martin v. Manufacturing Co., 198 N. Y. 324; Lore v. Manufacturing Co., 160 Mo. App. 608. “Liability to injury by coming in contact with unguarded machinery does not mean that an employee must be working with the machinery. It is enough that, in the performance of such work as he has to do, it is possible for him to be injured.” Cook v. Lumber Co., 61 Wash. 118. “It is not necessary that the defendant should have anticipated the exact injury that resulted from his negligence. It is sufficient if by ordinary care he should have known that some injury might happen from such negligence. ’’ Davis v. Lumber Co., 164 Ind. 413. There is seeming conflict among the authorities as to the extent to which the statute contemplates protection against injury when there are intervening or contributing causes, such as slipping and falling, but^the apparent conflict may be reconciled on the anomalous character of some of the accidents or the contributory negligence of the injured party. Cobb v. Welcher, 75 Hun. 283; Roots Co. v. Meeker, 165 Ind. 132; Crawford & McCrimmon Co. v. Gose,
The statute’ expressly leaves the. arrangement of the machinery in the plant in the discretion of the employer, but requires him to guard such of its as is so arranged as to be dangerous. Thus the arrangement of the machinery and the precaution against danger therefrom, are matters as to which he acts at his peril, within the limitations already mentioned, if the arrangement is clearly not dangerous, the guarding may be omitted. But, if the facts and circumstances are such as to carry the question of necessity to the jury, he acts at his peril. Prom what has been said, it is apparent that the danger may result from the arrangement the master sees fit to adopt. In other words, the relation in which he has placed the various parts of his plant to one another and the duties assigned by him to the servants and the methods adopted for their performance thereof, all enter into the question of liability.
The machine in question here was so constructed and operated as to afford little opportunity for injury by it to persons working around it on the floor. The opening was more than three and a half feet from the floor and it was considerably less in diameter than the machine. Around the opening at the top of it there was a covered margin of three or four inches, under which the revolving basket worked. But, to persons who were required to go above it for any reason or purpose, it might be highly dangerous. Its opening was large enough to admit a man’s head, arm or leg, in ease he should fall or step into it, and in such case serious injury would be inevitable, for the revolving basket within the opening ran at high speed, over 1400 revolutions per minute. There was evidence from which the jury could infer duty or necessity on the part of some employee to go above this
If the omitted duty had been one imposed by the common law, the plaintiff’s right of action would be precluded by his assumption of the risk of the injury he suffered. lie knew as much about the plant and machinery as the master himself, having worked there for nearly four years and in many other similar places.' But the duty left unperformed by the master was a statutory one, and the great weight of authority is to the effect that a servant working around unguarded machinery which the statute requires to be guarded does not assume the risk of such injury as may ensue. The statute does not in terms eliminate assumption of risk, nor say 'the omission of duty shall be negligence on the part of the master. But to make the statute effective, it is necessary to exclude the assumption of risk and give a right of action for the omission of duty. It is comparatively new-, and long before its passage, other statutes ■ imposing duty, without giving any -right of action for omission thereof in express terms, had been construed as carrying rights of action for violation thereof, resulting in injury, and as the legislature has acquiesced in such construction, it must be deemed.to have approved it, and passed this act under the impression and belief that it would be given a like construction. That injury from the omission
■ Por obvious reasons, contributory negligence remains as a ground of defense, Norman v. Coal Co., 68 W. Va. 405, hut such negligence on the part of the plaintiff is not conclusively
These conclusions result in affirmance of the judgment.
Affirmed.