Cincinnati, H.&D. Ry. Co. v. Armuth

• Decision Date: 19 December 1913
• Docket Number: No. 22,535.,22,535.
• Citation: 180 Ind. 673,103 N.E. 738
• Parties: CINCINNATI, H. & D. RY. CO. v. ARMUTH.
• Court: Indiana Supreme Court

180 Ind. 673

103 N.E. 738

CINCINNATI, H. & D. RY. CO.

v.ARMUTH.

No. 22,535.

Supreme Court of Indiana.

Dec. 19, 1913.

Appeal from Circuit Court, Marion County; Joseph Collier, Judge.

Action by Henry F. Armuth against the Cincinnati, Hamilton & Dayton Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and new trial granted.

Transferred from the Appellate Court under section 1405, Burns' Ann. St. 1908.

John B. Elam, James W. Fesler, and Harvey J. Elam, all of Indianapolis, for appellant. George W. Galvin, of Indianapolis, for appellee.

MYERS, J.

Action by appellee against appellant for personal injuries while working in appellant's machine shop in Indiana. Complaint in one paragraph and answer in general denial. The errors assigned are predicated on error in overruling appellant's motion for judgment non obstante, and in overruling its motion for a new trial.

Appellee's injury was occasioned by his hand slipping from a lever with which the motion of a drill was controlled, into an alleged unguarded iron gearing which, it is alleged, could have been guarded at small cost without impairing its practical usefulness. The jury found in answer to interrogatories that the accident and injury to appellee was caused by his hand slipping from the handle of the lever, while he was undertaking to operate it, into the cogs, a distance of about 8 inches from the handle of the lever; that the cogs were not covered in any way, and that there was no evidence as to whether appellee took a firm hold of the handle, or whether, if he had, it would or would not have slipped off, or as to the pressure required to work the lever, except that it would move with a pressure about equal to that of a man's hand, and that there was no evidence that it required five pounds pressure to move it; that the limit of movement of the lever was about 5 1/2 inches from a perpendicular to the left, away from the cogs, and back to the right to a perpendicular, and it moved easily; that the cogs meshed together about 12 inches from the floor, and the lever was about 14 1/2 long, with a handle at the top, and he operated it about six times a day. Appellee had worked at the machine continuously from April 1, to July 7, 1910, the date of his injury. There were eight cogwheels of different diameters, four on the lower shaft meshing into four on the upper shaft, but on four different alignments, owing to the differing diameters of the wheels above and below the cogs which meshed together. Appellee lost the third and fourth fingers by the accident.

It is appellant's contention that it was not the unguarded condition of the cogs, as shown by the findings, but the slipping of appellee's hand which constituted the proximate cause of the injury, and that he was culpably negligent in allowing his hand to slip into the cogs. Reliance is placed by appellant on Hattaway v. Atlanta, etc., Co., 155 Ind. 507, 58 N. E. 718;P. H. & F. M. Roots Co. v. Meeker, 165 Ind. 132, 73 N. E. 253; and Crawford v. Gose, 172 Ind. 81, 87 N. E. 711. It is to be said, as to the first of these cases, that it arose prior to the enactment of the Factory Safety Act. The two latter cases were expressly overruled on the point under consideration in King v. Inland Steel Co. (1911) 177 Ind. 201, 96 N. E. 337, 97 N. E. 529. See, also, Inland Steel Co. v. Ilko (1913) 103 N. E. 7.

The opinion in the Meeker Case was written by Mr. Justice Hadley, who also wrote the opinion in United States, etc., Co. v. Cooper (1909) 172 Ind. 599, 88 N. E. 69. In that case the accident occurred by Cooper stumbling and throwing his foot in the conveyor. When the Gose Case was decided, the writer of this opinion had not had occasion to examine the Meeker and Sullender Cases, but when the Cooper Case came on, he took strong ground as to the doctrine of those cases, and the application of the ejusdem generis rule in Laporte, etc., Co. v. Sullender (1905) 165 Ind. 290, 75 N. E. 277. The result was a different view by the court in the Cooper Case, and conformity of that decision with the Laughlin Case, 168 Ind. 38, 79 N. E. 1033, as distinguished from the Meeker and Gose Cases, and I am still persuaded with the better reason. In the late case of Balzer v. Waring (1911) 176 Ind. 585, 95 N. E. 257, the facts gave rise to something other than the unguarded machinery as the proximate cause of injury, and were stronger than in the case at bar, but this court there said: “Proximate cause is the act that immediately causes, or fails to prevent, an injury that might reasonably have been anticipated would result from the negligent act or omission charged, and without which such injury could not have occurred. The test is to be found in the probably injurious consequences that were to be anticipated, and not in the number of subsequent events or agencies that might arise to bring about such consequences.” See cases there cited. To the same effect are Cleveland, etc., Co. v. Powers (1909) 173 Ind. 105, 118, 88 N. E. 1073, 89 N. E. 485;Davis v. Mercer, etc., Co., 164 Ind. 413, 73 N. E. 899;Indianapolis, etc., Co. v. Schmidt, 163 Ind. 360, 71 N. E. 201;Evansville, etc., Co. v. Bailey, 43 Ind. App. 153, 84 N. E. 549;Tucker, etc., Co. v. Staley (1907) 40 Ind. App. 63, 80 N. E. 975;Van De Bogart v. Marinette, etc., Co., 132 Wis. 367, 112 N. W. 443;Hartman v. Berlin, etc., Co., 71 Misc. Rep. 30, 127 N. Y. Supp. 187. The particular or actual consequences need not be anticipated. Davis v. Mercer, etc., Co., supra; Fine v. Interurban, etc., Co., 45 Misc. Rep. 587, 91 N. Y. Supp. 43. That the accident could not have happened without the offending cause is sufficient to constitute it the proximate cause. Tucker, etc., Co. v. Staley, supra; Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679, 44 L. R. A. 216.

[1][2] The statute is remedial, and should at least receive such construction as the reasonable intendment of its enactment discloses. As to certain designated machinery, it puts beyond inquiry by courts or juries as to whether it should be guarded, the one condition only being whether this can be done without affecting the practical utility of the machinery. When its purposes are considered, can it make any difference how the injury arises as to the proximate cause, if it could not have occurred if the machine had been guarded, and if so, is it not necessarily the efficient, producing cause, where there is no intervening independent cause? This leads to the inquiry whether the slipping of appellee's hand from the lever was an independent cause, or a concurring cause, between which and contact with the cogs there was an immediate unbroken connection, and whether it need to have been reasonably anticipated that such result might occur as did occur. Is it not the very object of the statute to guard against injuries, which the Legislature has determined by the act itself are likely to occur, as to the operation of the designated machinery or appliances? That there was no intervening responsible agency is apparent, unless it can be said that the hand slipping was that agency. If the hand had not slipped, the injury would not have occurred. If the cogs had been guarded, it would not have occurred. They therefore were concurring causes. This being true, what is the legal sequence? Cases in other jurisdictions under different statutes mark the difference between statutes which are mandatory and such as leave it a question of fact whether the particular appliance is dangerous, or it ought to be reasonably apprehended to be dangerous, whether it should be guarded, or is properly done, and whether the failure is the proximate cause of the injury. Such cases are, Koutsky v. Forster, 146 Wis. 425, 131 N. W. 1001;Miller v. Kimberly, etc., Co., 137 Wis. 138, 118 N. W. 536; Hartman v. Berlin, etc., Co., supra; Callopy v. Atwood (1908) 105 Minn. 80, 117 N. W. 238, 18 L. R. A. (N. S.) 593;McGinnis v. Rigby, etc., Co. (1906) 122 Mo. App. 227, 99 S. W. 4;Glens Falls, etc., Co. v. Travelers', etc., Co., 162 N. Y. 399, 56 N. E. 897.

Under our statute and cases, it has been held that the duty to guard specified machinery is mandatory, and the failure to guard is negligence per se. It has been held as to slipping and falling, by reason of which injury arises from appliances required to be guarded, is not a proximate cause, and that the absence of the guard is the proximate cause, irrespective of the agency which produces the injury, so long as it is reasonably to be anticipated as a result likely to ensue as a natural result of the neglect or omission charged. Evansville, etc., Co. v. Bailey, supra; Hartman v. Berlin, etc., Co., supra; Martin v. Walker, 198 N. Y. 324, 91 N. E. 798;Rosenbaum v. Shoffner, 98 Tenn. 624, 40 S. W. 1086; Shields v. Murdoch et al., 20 Sc. Sess. Cas. (2d Sess.) 727. It has been held in Minnesota (Christianson v. Northwestern, etc., Co., 83 Minn. 25, 85 N. W. 826, 85 Am. St. Rep. 440), under a statute requiring the guarding of specific machinery, that liability arises from the failure and injury, even though the injury could not be reasonably anticipated. It is also held that similar statutes are intended to embrace and cover injuries arising from the ordinary duties of the particular employment, and also occasional and exceptional duties in the course of the ordinary duties of the employment. Koutsky v. Forster, etc., Co., supra; Caspar v. Lewin (1910) 82 Kan. 604, 109 Pac. 657;Pittsburg, etc., Co. v. Fisher (1909) 79 Kan. 576, 100 Pac. 507; Callopy v. Atwood, supra; Cook v. Danahar, etc., Co. (1910) 61 Wash. 118, 112 Pac. 245;Walker v. Newton, etc., Co., 99 App. Div. 47, 90 N. Y. Supp. 530;Hurley v. Atlantic, etc., Co., 138 App. Div. 642, 122 N. Y. Supp. 701; Hartman v. Berlin, etc., Co., supra.

[3] If every act concurring with the failure to guard results in an injury, there being no intermediate responsible agency, should be regarded as the proximate cause, the statutewould be practically nullified....