124 Mo. App. 511 | Mo. Ct. App. | 1907
This action was begun in the name of John Findlay, a minor, by his curator, Garrard Strode, public administrator of the city of St. Louis. The relief sought was damages sustained from a personal injury to the minor in appellant’s factory, an establishment for the manufacture of boxes. When the accident occurred Findlay was working on a machine on the first floor of the building. A drum or pulley about a foot in diameter rotated on an axle overhead. This drum was from a foot to a foot and one-half higher than his head and the same distance to the right of where he stood when at his ordinary work. The upper portion of the drum was between two of the joists on which the floor of the second story of the building was laid, there being no ceiling in the room. About half the diameter of the drum came below the joists and the other half was between them and close to the floor above. A heavy beam of wood ten inches
The only ground of recovery submitted was that the belt was not guarded as required by the statute, although it was practicable to do so and that the failure to guard it caused the injury. Against this theory, appellant contends the statutes in reference to safeguarding machinery, do not contemplate that an appliance located where no workman is in danger of contact with it while in the performance of his task, shall be screened; and as there was no chance for a workman to come in contact with the belt where it ran over the drum, a guard was not required. It is apparent, that Findlay was hurt by one of the ends of the ruptured belt flying down through the aperture in the floor above and striking him. Therefore, the theory of the respondent is that a guard, or screen should have been placed under the drum to intercept the descent of the belt in case it tore in two. On 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.” [R. S. 1899, sec. 6133.]
The statute shows on its face that not all of the mentioned appliances need be guarded and the point of law to be determined on the appeal is, what is meant by the words “When so placed as to be dangerous to persons employed therein or thereabout when engaged in their ordinary duties ?” Appellant’s counsel say the meaning is that no appliance of the kind specified need be guarded, unless there is danger of an employee getting in contact with the moving appliance while engaged in his ordinary duties. In other words, that the statute does not intend to protect employees against injuries arising from defective appliances or negligent management, for which the common law provides a remedy; but intend only to afford protection against such accidents as may occur from contact with the appliance while in motion, even if it is in good order and properly operated; and hence, if an appliance is so located that employees cannot come in contact with it while running, without go
In our judgment, the facts before us show no liability on the part of the appellant, on the more conservative view of the law taken in the cases we have cited. Most of these cases were based on accidents caused by employees coming in contact with revolving shafts, not guarded, but located where there was no reason to think it was dangerous to employees in the course of their ordinary duties. In Dillon v. Coal Tar Co., the injured servant was a steam fitter who had been directed to take, down a line of pipe near the ceiling of a room in the company’s factory, and while engaged in doing- the work, his clothing caught on a revolving shaft. The shaft ran about two feet below the ceiling of the room and was out of reach except on a ladder. On this state of facts it was ruled the company was under no statutory obligation to guard the shaft. The opinion cites Glens Palls Portland Cement Company v. Insurance Company, supra, in which the factory laws of the State of New York were construed by the court of last resort in that State. The statute involved reads: “All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery of every description therein (in a factory) shall be properly guarded.” An employee was hurt while oiling a shaft which revolved fifteen or eighteen feet above the floor of the room, the employee having ascended to it on a ladder. The shafting was unguarded and his sleeve caught in a set-screw. The question for decision was whether, under the statute, there should have been a guard. It will be observed that the New York statute does not contain the words found in the Missouri statute, that the specified machinery shall be guarded “when •so placed as to be dangerous to employees engaged in their ordinary duties;” but the New York Court of Ap
But it may be said that when a machine is so placed as to be dangerous to employees, is a question of fact for the jury and not one of law for the court. In most instances, no doubt, this would be true, and the fact has not escaped the attention of the courts in dealing with the question of negligence under the factory statutes. [Powalske v. Brick Co., 110 Wis. 461, 467.] In 'any negligence case, whether the negligence be the omission of a statutory duty or some other duty, the culpability on the part of the defendant is to be found by the jury, when fair and reasonable minds might differ about what the evidence shows; otherwise, the court will take-the matter out of the jury’s hands. Therefore, the essential question at this point is, whether the evidence warrants the infei’ence that the drum or belting which
The judgment is reversed and the cause remanded.