122 Mo. App. 1 | Mo. Ct. App. | 1906
The defendant was the owner and operator of a wagon factory and plaintiff was his employee. In operating the factory defendant maintained therein certain shafting and machinery constituting a planer or jointer, which plaintiff charges was dangerous to persons employed in and about the plant. Plaintiff alleges that while engaged in performing services for defendant as his employee, his hand came in contact with the blades of the planer and was badly injured. He recovered judgment in the trial court for such injury.
The action is based upon the following* statute (section 6433, Revised Statutes 1899) : “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 when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments.”
As the defendant disputes that the machinery which inflicted the injury is of the kind named in the statute, we will first determine that point, since in settling that, there follows, in reality, a determination of much of the contention between the parties. For if it is once found that the evidence places the case under the provisions of the statute, its disposition is much simplified. The machine is thus described in plaintiff’s petition, viz: a machine “consisting of a horizontal and rapidly revolving metal shaft with steel knives fastened thereon and protruding upward through a slot or opening in an iron
We conclude that this horizontal instrument with the knives fastened therein was a “shafting” in the sense and meaning of the statute. . We think it wholly unlike the machine described in Smith v. Forrester Box Co., 193 Mo. 715, and that that case is not applicable.
It is conceded that there were no guards about the machine and as the statute directs that there shall be “when possible,” the plaintiff undertook to show, and introduced evidence at the tidal tending to show, that it wa,s practicable to reasonably safely guard the machine. But the statute aforesaid demands of the employer that in the event of a safeguard being “not possible” that “then notice of the danger shall be conspicuously posted.” In view of this provision, it was an unnecessary burden assumed by the plaintiff in proving negligence by showing that this machine might have been guarded; for if it is the instrumentality or machine contemplated by the statute, and, from its nature, cannot be guarded, then the duty arises to post the notice and a failure to post is negligence per se. The evident meaning of the statute is that if the machinery may be guarded and is not, it is negligence, even though a notice is posted; and if it is operated and is not guarded because it cannot be, it is still negligence unless a notice is posted. The Supreme Court of this State in an
Whether, when a case is made out showing defendant’s culpability under the statute, he can be allowed recourse to the doctrine of the employee’s assumption of obvious risk as distinguished from ordinary risk (Knisley v. Pratt, 148 N. Y. 372; O’Maley v. Gas Co., 158 Mass. 135; Anderson v. Lumber Co., 67 Minn. 79) need not be considered. For, whether under certain conditions of knowledge, plaintiff assumed the'risk of injury was submitted to the jury as a question of fact in an instruction offered by defendant. And we do not think the evidence will justify us in saying that such assumption of risk was so clearly established as to justify a peremptory instruction in defendant’s behalf. So that in this case if such defense is allowable (a point we do not decide) defendant had the benefit of it.
But not withstanding the master’s guilt by noncompliance with the statute, he may yet successfully defend himself by shoAving that the employee was himself negligent in such Avay as to have contributed to his own injury. For though no guards are placed AAdien they might have been, and though (if they could not have been) no notice Avas posted, yet the employee cannot knowingly thrust himself against the dangerous machinery. There was such an issue in this case and it Avas recognized by the trial court in giving instructions for each party on that head. The verdict of the jury in plaintiff’s favor has abundant evidence in this respect in its support. If the danger in Avorking as plaintiff was when injured Avas not so patent and obvious that a man of common prudence Avould not have been engaged as was the plaintiff, he should not be held guilty of con-
The instructions given at plaintiff’s instance are found to be in harmony Avith the view's Ave have herein expressed. We avíII hoAvever refer particularly to one of them. By that one the court informed the jury that in a case based on the statute above set out, it Avas no defense that the machine upon which plaintiff was injured Avas a reasonably safe machine. This Avas a proper instruction and the law' therein stated has the approval of the Supreme Court in Lore v. American Mfg.
The instructions given for the defendant were far more liberal to him than the law, as we have herein stated it, justifies. With the exception presently referred to, they omit defendant’s culpability in not posting the notice required by the statute when the machinery cannot be guarded. Number four submits the question of accident, on the theory that the injury may have occurred '“without the fault of plaintiff or defendant.” The case made afforded no ground for a hypothesis of the defendant being without fault. Having determined that the machinery was of the statutory character, and it being admitted that neither guard nor notice was provided, defendant’s fault became established.
In consideration of the fact that the eleventh instruction, really, in effect, challenges the propriety of any judgment for the plaintiff we deem it proper to look into its merits. It informed the jury that though the machinery was not guarded, and though it could have been, and that no notice of danger was posted, yet if the notice Avas not necessary to enlighten plaintiff in reference to the danger; and that plaintiff was instructed and shown hOAV to operate the machine by defendant’s foreman; or Avas Avarned by the foreman of the danger; or by observation was aware of the danger, that then the posting of a notice Avas not necessary. It is apparent that that instruction permitted the defendant, as a matter of law, to substitute other forms of notice for that required by the statute and absolved defendant from obeying the statute if the plaintiff could have observed the danger. The statute ought not to be se.t aside in such manner. The statute evidently in
The statute, recognizing that trait in human nature to become inattentive to danger by constant presence with it, required this continuous notice as a protection against what might, in ordinary respects, be termed the servant’s carelessness. We, of course, do not say that the servant could not be so careless as to cause him to lose his right to hold the master liable for injury where no notice was posted. As already stated, he could be guilty of such negligence in some circumstances, as Avould deprive him of a right of action. But Ave do hold that in all cases the statute must be allowed to count for something, and to that end it should enter into consideration in determining Avhether there was culpability on the servant’s part. If the servant’s fault is to be determined by the usual rules applicable where there is no statute, then the enactment of the statute Avas well-nigh useless. The true question in such cases- is: Avould the servant have acted in the careless manner he did act if the reminding notice required by the law had been conspicuously before him? Or, stated in another way, should his conduct, in the circumstances, be denominated careless conduct? The notice, as already intimated, is required in recognition of a failing in human nature, and not being posted, one is apt' to become unmindful of a danger which a constant warning might have caused him to avoid. We regard a statement of laAV made in Beach on Contributory Negligence, sec. 67, as applicable and as supporting the view of the statute Ave have taken. That author states: “When the defendant, by his oavu negligent or Avrongful acts, or omissions,
In illustration of what we state should be the rule, or rather should be the mode, of determining whether a servant has been guilty of contributory negligence in an action on the statute, we call attention to the case of Montgomery v. Railroad, 181 Mo. 477, 500, where a flagman customarily gave a warning to persons not to cross a railway trank. It was held that the flagman’s failure to give the warning should be considered in de; termining whether-the plaintiff was guilty of contributory negligence in crossing. “Acts of-a (railway) gate-man which tend to mislead a traveller into the belief that he may cross in safety are to be taken into account in determining whether an attempt to cross is negligent.” [Conaty v. Railroad, 164 Mass. 572.] “The effect of the appellant’s failure to obey the law extends much
Those cases are not cited as bearing directly on the statute involved in this case, but they do serve to illustrate the security of the position we take in disapproving of the defendant’s instruction and in requiring in those instances where the statute reads that a notice shall be posted, that an absence of such notice shall have its weight and be considered in determining whether the servant’s conduct amounted to contributory negligence.
We have had the benefit of exhaustive briefs by the respective counsel as well as full presentation of the case orally, and while we have not taken up suggestions in detail which have been urged against the judgment, it is believed that what we have said covers the entire case so far as necessary under the view of the law herein stated. The jury did not lack for full information as to the issues in the case and save as to instructions for defendant which we believe were more than he was entitled to, the direction given them was unexceptionable. In fairness to the trial court, it perhaps should be said that the scope of the instructions should be charged to the liberal disposition shown by the counsel for either side not to refuse to respond to any issue connected with the merits of the case which was tendered by the other. With the concurrence of the other judges, the judgment is affirmed.