Atl. Coast Line R. Co v. Bell

• Decision Date: 01 March 1928
• Citation: 141 S.E. 838
• Parties: ATLANTIC COAST LINE R. CO. v. BELL.
• Court: Virginia Supreme Court

141 S.E. 838

ATLANTIC COAST LINE R. CO.

v.BELL.

Special Court of Appeals of Virginia.

March 1, 1928.

Error to Circuit Court, Chesterfield County.

Action by A. D. Bell against the Atlantic Coast Line Railroad Company. Judgment for plaintiff and defendant brings error. Affirmed.

Robert W. Strange, of Richmond, and Mann & Townsend, of Petersburg, for plaintiff in error.

D. M. White, Geo. B. White, and M. P. Bonifant, all of Richmond, for defendant in error.

CHINN, J. A. D. Bell, plaintiff in the court below, was employed as "materialman" at the "Clopton" car repair shops of the Atlantic Coast Line Railroad Company (hereinafter referred to as defendant), and, while so employed and engaged in the performance of his duties, one of his hands was cut off by a ripsaw installed in said shops, which he was at the time operating.

He subsequently brought this suit and was awarded $7,500 damages by the jury, for which amount the court entered judgment, and the defendant company is now here complaining of that judgment.

Plaintiff's account of the accident as related in his testimony at the trial, is as follows:

"On November 8, 1923, as I was passing along by the saw table which this saw was under, I seen Mr. Hughes standing in front of this ripsaw with a board in his hand. I walked up to him. I said, 'Mr. Hughes, what do you want?' He says, I want this board ripped.' I said, 'Mr. Hughes, pull the saw in gear and get behind the table and catch the board as it comes through.' I picked up the board and started to rip it, and Mr. Hughes caught the end of the board as it came through the end of the saw. When I got near the end, about two or three feet (I disremember now; I would not be positive how many feet it was, but it was near the end), the board began to buck up and down on the saw more than I had ever seen it on any saw. I stepped one side, holding my hand on the board, and tried to hold it down, and, as I made a step forward, I stepped into some blocks, and it threw me over the saw. Meantime I tried to keep out of the saw, and I got my hand caught in the saw and lost it. You see what I have left of it."

Plaintiff further testified that when the board began to buck, he stepped forward so that he could hold it down on the saw table, and thereby keep it from breaking loose and flying back and striking him, as it was liable to do.

The negligence charged against the defendant, and chiefly relied on, is that it failed to properly guard the saw by which plaintiff was injured, as required by section 1830 of the Code, known as the Safety Appliance Act. This statute, so far as applicable, provides:

" * * * All vats, elevators, saws, planers, cogs, gearing, belting, shafting, set screws, shapers, corner machines shall be properly guarded. No person shall remove or make ineffective any safeguard around or attached to machinery vats, or elevators while the same are in use, unless for the purpose of immediately making repairs thereto, and all such safe; guards so removed shall be promptly replaced. If a machine or any part thereof is in a dan gerous condition, or is not properly guarded, notice thereof shall be given to the manager or owner in charge of such operation, and unless such machinery is repaired or made safe within thirty days after such notice, the use thereof may be prohibited by the commissioner of labor and a notice to that effect shall be attached thereto. * * * "

Penalties are provided for violation of the statute.

It is contended by counsel for defendant that the evidence is insufficient to show that the saw in question was not "properly guarded" within the meaning of the statute; and that is the first question presented by the petition for writ of error for our consideration.

Considering the evidence as upon a demurrer, it shows that, at the time of his injury, plaintiff was using the saw to rip a board 18 feet long, 3¹/₄ inches wide, and seven-eighths of an inch thick by the operation of what is called "free cutting, " or "cutting to the line." This operation, as partly described by the plaintiff, consists of pushing the board against the saw in order to rip it lengthwise to a line marked on the board, without any guide or device to control it except the operator's hand. This particular saw was revolved by a shaft running under the table to which it was attached, and protruded above the table 5¹/₂ inches. The table was about 10 inches wide, thereby extending about 5 inches on each side of the saw. The guard provided by the defendant consisted of a steel frame covered with a strong wire netting, which could be raised or lowered by means of a bracket. When the appliance was lowered as far as it would come, it stood about one-half an inch above the saw, and six inches above the saw table. The bottom of the guard was not curved, but extended straight over the top of the saw for about 2 inches beyond each edge of the same.

It is argued that, if the guard came down over the saw low enough to make it impossible for the operator's hands and fingers to get under it, it would prevent the operator from seeing the saw and the line and thereby render the saw useless for "free cutting, " and the saw was therefore guarded as far as practicable for the purpose for which it was intended to be used. It is true, as held by quite a number of decisions dealing with similar statutes, that the master is not expected to guard the instrumentalities in such a way as to materially interfere with their practical use and efficiency, but, in view of the evidence produced in this case, it seems clear that the guard in question, even if proper in other respects, could have been constructed to come down appreciably lower over the saw without in any manner interfering with the operator in "cutting to the line, " or the practical use of the saw for that purpose. As to exactly how low a guard could comedown over the saw without interfering with "free cutting" the evidence is in conflict. The plaintiff, as an experienced operator, testified that a space of half an inch between the guard and the board being ripped would be sufficient to enable one to see both the saw and the line for "free cutting"; and a model for such a guard was exhibited during the argument which tends to substantiate his statement. But that is not the question here. The question, is whether the appliance provided by the defendant adequately protected plaintiff from injury by the saw as far as practicable, considering the purpose for which he was using it; and this is a question of fact for the jury.

There is abundant evidence going to show that, after the guard in question was lowered as far as it would come, it left the saw unguarded for a space of 5 inches or more between the guard and the board then being ripped, that this was an unnecessary amount of space for "free cutting, " and that it was practicable to have provided a guard for "free cutting" which would have materially lessened, if not eliminated, the danger to which plaintiff was exposed and which caused the loss of his hand.

We think the evidence is amply sufficient to warrant the jury in finding, as it did, that the ripsaw was not properly guarded as required by the statute.

The statute under consideration has been twice considered by the United States Circuit Court of Appeals, and there are numerous decisions construing the statutes existing in other states, containing similar or identical provisions. In effect the decisions hold that it is the purpose of the statute requiring the machinery specified to be properly guarded, that the master shall place such safeguards around it as are practical and necessary for the protection of his employees from all dangers which might be reasonably anticipated from its operation, that violation of the statute on the part of the master constitutes negligence, and that the question of whether the instrumentality is or is not properly guarded is a question of fact for the determination of the jury.

In the case of E. I. Du Pont de Nemours & Co. v. Brisco, 254 F. 962, in which the United States Circuit Court of Appeals had the Virginia statute before it for consideration, the court said:

"The defendant argues that it would have done no good to guard the vat, because it says the guards would have been around the outside of the tank, and it was not there that the plaintiff fell, and that it was impracticable to guard the drainage platform upon which the plaintiff slipped, or the stringers which he habitually traversed, and upon which he occasionally worked. Such an argument misconceives the whole purpose of the statute. The enactment * * * declared that 'all vats * * * shall be properly guarded.' That does not mean necessarily that the guards shall be on the outside of the vat. They should be there if guards at that place are needed to attain the purpose of the Legislature, namely, the protection of the workmen; but the place and manner of the guarding must be such as will at least reasonably safeguard employees while engaged in their habitual work and in their necessary passing to and from it."

In the case of Foster v. E. I. Du Pont de Nemours & Co., 289 F. 65, where the United States Circuit Court of Appeals again had section 1830 of the Virginia Code before it for consideration, the court said:

"The statute should have a construction broad enough to meet the legislative purpose in view. Obviously one of the chief dangers in the use of vats or tubs frequently filled with hot water or acid and then emptied from the bottom through a hole into a tub or trough is that the pressure from above may force the water out with such violence as to strike and injure employees working around the vats. This is a danger immediately incident to the operation of the vat, and is as clearly within the provision of the statute as guarding the vat by cover. Properly guarded means effectively guarded in view of any danger to be anticipated in the operation of the vat." (Italics supplied.)

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