250 Mo. 695 | Mo. | 1913
This is an action to recover. damages on account of injuries to plaintiff, an employee in defendant’s box factory in St. Louis, from being struck on the head by a broken belt while operating a wood matching machine in the factory. At the close of the plaintiff’s evidence the court instructed peremptorily for the defendant. This appeal is taken from the judgment of non-suit forced upon plaintiff by this action, and, which, upon motion duly filed with leave, it refused to set aside.
The plaintiff was employed in operating a wood working machine, called a matcher, in the basement. The mandrel of this machine made from twenty-nine hundred to three thousand revolutions per minute and seems to have been driven from a shaft hung upon the floor system overhead. This shaft was, in turn, driven by the belt which was the direct cause of the accident. This belt was of leather, forty-three feet ten inches long,' ten inches wide and from one fourth to five sixteenths of an inch thick. It was built in sections from four to seven feet in length, fastened together with laps in which about eight inches of the ends to be joined were bevelled uniformly to an edge at the ends and glued, so that the- joint so made was of uniform thickness in all its parts and with the rest of the belt. The thin edges of these laps would-sometimes loosen up and “ears” would turn up. This would be indicated by a buzzing sound easily detected, and which it was the duty of the operator to report, when it would be reglued so far as necessary by the machinist. This belt passed around a pulley upon the shaft hung beneath the floor above the plaintiff’s machine, at an elevation about eighteen inches higher than his head when standing, and up through the floor into the room above, and thence to its driving pulley somewhere in
“And the plaintiff avers that said belting was not safely or securely or otherwise guarded as required by the statute, although it was possible and practicable to do, which violation of the statute of Missouri directly caused and contributed to the plaintiff’s said injuries. And for another and further assignment of negligence, the plaintiff avers that said belt was old, worn, rotted and patched, as the defendant and its servants charged with the duty of keeping said belt in repair well knew before the injury to the plaintiff aforesaid. Yet defendant and its said agents negligently failed to supply a proper and secure belt, and negligently provided said belt in said defective condition, where plaintiff was to work about in the discharge 'of his said duties. And the plaintiff avers that said belt was so caused to give way and break and injure the plaintiff by reason of its said defective condition. ’ ’
There is no evidence that this break occurred on account of the age of the belt, or because it had been weakened by age, or was worn, or rotten, or patched. The pulley above plaintiff’s head, from which the belt ran off and struck him, was between two of the floor timbers, but there was no guard or structure beneath it, so as to intervene between it and the defendant’s head.
This section constitutes a part of article 17, which is entitled “Factory Inspection in Cities with 5000 Inhabitants or More.” Section 6450 makes the violation of any of the provisions of the article a misdemeanor, punishable upon conviction by a fine for the first offense of not less than twenty-five nor more than two hundred dollars, and for each subsequent offense not less than one hundred nor more than five hundred dollars, and commitment until the fine and costs shall be paid.
“Whenever the Commissioner of Labor, or assistant inspector, finds that the heating, lighting, ventilating or sanitary arrangements of any establishment where labor is employed, is such as to be dangerous to the health or safety of employees therein or thereat, or the means of egress, in case of fire or other disaster, are not sufficient, or that the building, or any part thereof, is unsafe, or that the belting, shafting, gearing, elevators, drums or other machinery, are. located so as to be dangerous to employees, and not sufficiently guarded, or that the vats, pans, ladles or structures filled with molten or hot liquid, or any furnace, be not sufficiently surrounded with proper safeguards, or the platforms, passageways and*703 other arrangements around, in or about ány railroad yard or switch be such as to probably lead to, injury or accident to those employed in, around or about any such establishment or place, the inspector or assistant inspector shall at once notify the person or persons in charge of such establishment or place to make the alterations or additions necessary within thirty days; and if such alterations or additions be not made within thirty days from the date of such notice, or within such time as said alterations could be made with proper diligence, then such failure to make such alterations shall be deemed a violation of this article.”
This entire article was enacted in 1891 (Laws 1891, p. 159) under the title of “An Act relating to manufacturing, mechanical, mercantile, and other establishments and places, and the employment, safety, health and work hours of employees. ’ ’ It was carried without amendment into the Eevised Statutes, and was in force at the time of this accident. It covers many subjects germane to the title, including the duty to report accidents, the regulation of work required from minors and women with provisions for their comfort and health, the extinguishment of fires, escape in case of fires, the storing of explosives, ventilation and overcrowding, the construction of scaffolds and the safe arrangement of railway terminals, as well cts the requirements for the protection of machinery which are involved in this case. The penal provision applies to all these things. The fines are to be paid into the common school fund of the county in which the offense was committed, and it is made the duty of prosecuting attorneys to lend all possible aid in prosecutions for violation of its provisions.' The section last quoted, it will be seen, applies especially to those subjects about which opinions as to the best methods of accomplishing the required result may differ, and its provisions are not made specially applicable to eases in which nothing has been done to conform to
There can be no question that the provisions of this statute so. far as they provide protection for a large class of the people of the State are highly remedial in their nature. .The fact that the Legislature has considered it necessary to enforce them by quasi criminal pains and penalties only emphasizes their importance. It is true that such penalties will not be imposed until it .appears clearly that they were intended by the Legislature, but in this case no such imposition is involved. The fact that a private right may be deemed so important to the public safety that its violation is ma.de a crime should add no embarrassment to the remedy of the person injured.
In Sickles v. Sharp, 13 Johnson, 497, the Supreme Court of New York states this principle as follows:
“The rule that penal'statutes are to be construed strictly when they act on the offender, and inflict a penalty, admits of some qualification. In the construction of statutes of this description, it has been often*705 held that the plain and manifest intention of the Legislature ought to be regarded. A statute which is penal to some persons, provided it is beneficial generally, may be equitably construed.”
In conformity to the rule so stated, this court has always construed the section we are now considering as remedial in its nature, and as establishing a rule of care in the operation of dangerous appliances of which the courts will take notice even though the statute be not specially pleaded. [Lore v. Manufacturing Co., 160 Mo. 608; Lohmeyer v. Cordage Co., 214 Mo. 685; Bair v. Heibel, 103 Mo. App. 621.] In the numerous eases in the appellate courts of this State in which the protection of this section has been invoked by the employees, it has been assumed that for such purpose it is available without any action on the part of the inspector. A fair construction of section 6446 indicates that it was intended, in the particular cases to which it refers, to impose an additional liability, founded alone upon disobedience to his requirements. It takes nothing away from the mandatory character of section 6433.
Whether the situation upon which the plaintiff seeks to recover comes within the prohibition of section 6433 is a question involved in some difficulty. This particular case,’however, was before the St. Louis Court of Appeals on appeal from a former judgment in Strode v. Columbia Box Company, 124 Mo. App. 511, and although the decision of that court reversing a judgment for plaintiff was placed entirely on other grounds, the learned judge who wrote its opinion made some observations, evidently designed to be useful in another trial, which may be construed to support the position taken by the appellant that the section in question was intended not only to obstruct or warn employees from contact with the belt while being normally operated, but was also intended to insure their
PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.