106 Kan. 73 | Kan. | 1920
The opinion of the court was delivered by
M. E. Thorn was injured while in the employ of the Edgar Zinc Company. He recovered a judgment against the company under the workmen’s compensation act, and it appeals.
A reversal is asked solely on the ground that the circumstances were such as to constitute a valid defense under the italicised words in the following extract from the statute:
“If it is proved that the injury to the workman results from his deliberate intention to cause such injury, or from his willful failure to use a guard or protection against accident required pursuant to any statute and provided for him, or a reasonable and proper guard and protection voluntarily furnished him by said employer, or solely from his deliberate breach of statutory regulations affecting safety of life or limb, or from his intoxication, any compensation in respect to that injury shall be disallowed.” (Gen. Stat. 1915, § 5896; Laws of 1917, ch. 226, § 27.)
Immediately in front of the place where he worked was posted a notice reading:
“Notice! In case the elevator or crusher rolls or breakers become choked, shut down machinery until same is cleared. Edgar Zinc, Co., G. W. Whipple, Superintendent.”
He had read the notice and knew its contents — saw it almost every day. The power could be turned off by ah electric switch some thirty -feet from where he worked. He did not use it because he was afraid of it. He had turned it off on two previous occasions, and each time he had received a shock. He had seen other workmen take stuff out of the rollers — unclog them — without shutting off the power.
The English act and the acts of many of the states deny compensation to a workman whose injury is attributable to his own “serious and willful misconduct.” That provision, how
. We do not think that either the maul referred to or the switch, coupled with the direction as to its use, constituted a “guard and protection” furnished by the employer, within the meaning of that phrase as it occurs in the statute under consideration. The expression quoted was doubtless intended primarily to designate some such screen or barrier to prevent the workman coming in contact with machinery as is required by the factory act. (Henschell v. Railway Co., 78 Kan. 411, 96 Pac. 857.) We do not mean to imply, however, that it covers no wider a field than that. The maul appears to have been furnished as a means to break pieces of ore where that should become necessary — to prevent rather than to remedy the choking of the rollers, the latter situation being provided for by the direction to shut down the machinery. The fact that in order to remove the obstruction the plaintiff used another and less safe, although possibly more efficacious, instrument than the one furnished by his employer, is not equivalent to his refusal to use an available guard or protection against the danger to which his injury was due.
The question whether the failure to stop the machinery brought the plaintiff within the statutory exception is more difficult. In a sense it may be said that the rule adopted re
The judgment is affirmed.