Baltimore & O.S.W.R. Co. v. Cavanaugh

• Decision Date: 24 May 1904
• Docket Number: No. 4,840.,4,840.
• Citation: 71 N.E. 239,35 Ind.App. 32
• Parties: BALTIMORE & O. S. W. R. CO. v. CAVANAUGH.
• Court: Indiana Appellate Court

35 Ind.App. 32

71 N.E. 239

BALTIMORE & O. S. W. R. CO.

v.CAVANAUGH.

No. 4,840.^*

Appellate Court of Indiana, Division No. 2.

May 24, 1904.

Appeal from Circuit Court, Greene County; O. B. Harris, Judge.

Action by Owen Cavanaugh against the Baltimore & Ohio Southwestern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.Gardiner & Slimp, W. R. Gardiner, and Edward Barton, for appellant. Padgett & Padgett and C. E. Davis, for appellee.

COMSTOCK, J.

Action for personal injury alleged to have been sustained by appellee while in the employ of appellant by reason of failure of appellant to perform a statutory duty. The cause was tried upon the second paragraph of the complaint, to which a demurrer for want of facts had been overruled, and a general denial filed. The jury returned a verdict in favor of the appellee for $6,000, upon which the court rendered judgment.

The ruling on the demurrer to the second paragraph of the complaint is assigned and discussed as the first error. The objections made to its sufficiency seem to justify setting out its material averments at some length. They are as follows: “Par. 2. And the plaintiff says that on the 15th day of November, 1901, and for several months prior thereto, he was in the employ of the defendant as a carpenter; that his duties as such servant required him to work in the maintenance of way department of said defendant, who, on said day, was the owner and operator of a line of railroad running into and through Daviess county, Indiana; that said defendant during all the time of plaintiff's employment owned and operated in connection with its said railroad large machine and repair shops in said county, in which were kept and operated by steam power all necessary machinery to, and did therein manufacture and repair engines, cars, and other material used by the defendant in its business; that among other machinery kept, used, and operated by the defendant as aforesaid was a circular saw, about 22 inches in diameter, and which was set in a table, and revolved in a groove in the top of said table, so that about eight inches of said saw extended above the top of said table, and was so connected by mechanical devices with the steam power used in said shop that when in use it revolved with great rapidity; that said saw was used for the purpose of sawing and ripping pieces of timber used by the defendant in its said business; that in order to use said saw and to saw timber desired to be used by the defendanttherewith, it was necessary for the servants of the defendant using the same to lay the piece of timber to be sawed on top of said table, and hold the same with their hands, and guide the same against said saw, by which means the timber would be sawed into lengths and thickness desired; that it was necessary to the safe operation of said saw, and to the safety of defendant's servants so operating the same, that the top of that part of said saw extending the top of said table should be properly protected and guarded by the use of guards, so as to form a shield and protection thereof, and to ward off and keep the hands and arms of such employé from coming in contact with said saw; that such guard should, for such protection, be kept and maintained around and over said saw whenever the same was in use; that whenever such saw is used in the business aforesaid, and without such guards and coverings, it would be dangerous to any employé using the same in the manner aforesaid-all of which was well known to the defendant, and which defendant negligently failed to do at the time and times hereinafter and heretofore stated. And the plaintiff further avers that his duties as such employé was to work in and about said shops, and to, whenever called upon by his foreman so to do, use said saw and saw and rip pieces of timber as aforesaid; that on the 15th day of November, 1901, plaintiff, while at work for the defendant as aforesaid, was directed by his foreman to use said saw, which was not properly guarded, as aforesaid, and to rip pieces of timber into strips for the use of the defendant in its said business, and while he was so doing and using said saw he was at all times in the exercise of reasonable care and diligence to avoid and save himself from injury, and while thus engaged, and while holding a piece of timber and guiding the same against said saw, it became necessary for him to hold the same by placing his left hand in front of said saw and his right hand in the rear of the same; that while thus holding said piece of timber, the same suddenly and with much force, by reason of the contact with said saw and from other causes unknown to the plaintiff, was jerked and thrown forward and upward, thereby jerking and throwing plaintiff's right arm against said saw-all of which was caused without any carelessness or negligence of the plaintiff; that by reason of his said arm being so jerked and thrown against said saw the same was thereby cut, sawed, and injured in such a manner that the same had to be amputated between the wrist and elbow; *** that all of said injuries were caused by the negligence of the defendant in not having said saw properly guarded and in allowing the same to be used without guards, and all without the fault of plaintiff.”

This action is founded upon section 9 of the act of March 2, 1899 (Acts 1899, p. 234; Burns' Ann. St. 1901, § 7087i; Horner's Rev. St. 1901, § 5169k), entitled “An act concerning labor and providing means for protecting the liberty, safety and health of laborers, providing for its enforcement by creating a department of inspection and making an appropriation therefor, repealing all laws in conflict therewith.” The only negligence charged is the failure of appellant to have a guard on the saw with which appellee was working when he received his injuries. The first objection made to the complaint is that the factory act does not apply to persons or corporations using machinery exclusively for their own repairs and the manufacture of materials for their own exclusive use; and as it appears from the complaint that the machine shop of the appellant was operated in connection with its railroad for the sole purpose of its own use, the facts are not within the statute. The title of the act indicates its purpose. It is “An act concerning labor, and providing means for protecting the liberty, safety, and health of laborers.” The title is broad enough to justify a wide scope in the provisions of the statute. Section 1 limits the hours of labor for minors of both sexes “on any manufacturing or mercantile establishment,” etc. Section 2 forbids the employment of children under 14 years of age “in any manufacturing or mercantile establishment,” etc., and imposes conditions upon which persons under 16 years of age may be employed. Sections 5 and 6 provide for the safety of the employé in any manufacturing or mercantile establishment. Section 8 makes it the duty of the owner, agent, or superintendent, or other person having charge of any manufacturing establishment, to report to the state labor inspector, in writing, all accidents or injury done to any person on such premises within 48 hours of the time of the accident. Section 9 makes it the duty of the owner of any aforesaid establishment, etc., to furnish contrivances for the safety of the employés, and provides that all saws and machinery of every description therein shall be properly guarded. Section 18 interprets the language used in the act as follows: “The words ‘manufacturing and mercantile establishment’ *** means any mill, factory, workshop, store, place of trade or other establishment where goods, wares or merchandise are manufactured or offered for sale *** and persons are employed for hire.” To manufacture is to modify or to change natural substances so that they become articles of value or use. Anderson's Law Dict. p. 654. The interpretation for which appellant contends is that the purpose of the Legislature was to confine the operation of the statute to establishments where “goods, wares, or merchandise” are manufactured for or offered to the public market, is not in harmony with either the letter or the spirit of the statute. “The object of many of its provisions,” as stated in Monteith v. Kokomo Wood Enameling Company (Ind. Sup.) 64 N. E. 611, 58 L. R. A. 944, “is to reduce the hazards of certain employments in which machinery is used. Its effect is to impress upon certain kinds of machinery, such as saws *** the character of dangerous machinery, and to restrict their use by the employer unless properly guarded.” The use of the disjunctive “or” in “where goods, wares, or merchandise are manufactured or offered for sale,” means either where they are manufactured or where they are offered for sale. The averments of the complaint bring the machine shop of the appellant within the statute.

It is further argued “that the declaration in the complaint of the manner in which appellee was injured shows either an impossibility, or negligence on his part proximately contributing to his injury, depending upon which side of the saw table appellee was working, and which way the saw revolved; neither of which facts are stated.” We may concede that there is lacking definiteness of statement as to the situation, but not that the averments showed...