Balzer v. Warring

Decision Date01 June 1911
Docket Number21,874
Citation95 N.E. 257,176 Ind. 585
PartiesBalzer v. Waring et al
CourtIndiana Supreme Court

Rehearing Denied December 5, 1911.

From Huntington Circuit Court; Charles E. Sturgis, Special Judge.

Action by Mayme Balzer against Larry C. Waring and another. From a judgment for defendants, plaintiff appeals.

Reversed.

W. E Branyan and W. A. Branyan, for appellant.

Elam Fesler & Elam and J. Fred France, for appellees.

OPINION

Cox, J.

This is an action for personal injuries caused by the failure of appellees to guard a certain power shaft in their factory, pursuant to the provisions of § 9 of the factory act of 1899 (Acts 1899 p. 231, § 8029 Burns 1908), by reason of which failure of duty appellant was permanently injured. After issue formed by general denial, the cause was submitted to a jury for trial. At the close of appellant's testimony, the court, on motion of appellees, peremptorily instructed the jury to return a verdict for appellees, which was done. Appellant relies upon this action of the trial court, and on certain adverse rulings excluding evidence offered by her, as errors compelling a reversal of the cause. The action of the trial court in non-suiting appellant was taken upon the following facts established by the testimony given in her behalf. At the time appellant received her injury, June 25, 1906, appellees were conducting a glove factory in the city of Huntington, and appellant had been for five months in their employ, sewing gloves with a power machine. Said machine at which appellant worked was one of a large number placed about three feet apart on a long, stationary table. These machines alternately fronted either side of the table, and the women operating them sat at their respective machines. The table was four feet wide, and was supported by iron legs about eight feet apart, and save for a narrow board running along on either side, parallel with the table and attached to these legs near the floor, the space under the table was entirely open. Under the center of the table there was placed a power shaft extending the length of it, with pulleys attached about three feet apart, for operating the machines on the table. This shaft was not guarded, but both it and the pulleys could have been guarded without in any way interfering with the efficiency of the machinery. Appellant operated her machine while sitting in a chair at the table facing it. On the day of said injury, and prior thereto, there was posted in the factory--and appellant knew of it--a rule that all parts of machines broken or lost would be charged to the employe losing or breaking a part. While sitting at her machine at work on the day she received her injury, appellant dropped the bobbin and shuttle of her machine. She caught the bobbin, but the shuttle fell to the floor. She arose from her seat to search for it, and when a thorough search about her chair resulted in a failure to find it, she stooped and looked under the table, to do which she placed one hand and arm and her head and shoulders thereunder. While so looking to see if the shuttle had fallen through a hole in the floor in front of her, and near to the revolving shaft, strands of her hair, which was coiled on her head, were caught by the shaft and wound around it. Appellant knew that the shaft was under the table, and that it was unguarded, but she did not see it while looking for the shuttle. Most of her hair was violently torn from her scalp and she was severely injured. The injury and nervous shock accompanying it greatly, injuriously and permanently affected her health, so that at the time of the trial she had lost much flesh, and had become emaciated and chronically nervous.

At common law there rested on an employer the general duty to exercise reasonable and ordinary care to provide for the employe a safe place in which to work. This rule of the common law was evolved to fit general conditions. When conditions of labor were simpler, when there was little congestion of machinery and labor in mills and factories, when tools, appliances and machinery used in productive industry were less complicated and complex, when the power and speed of machinery were not so great, when labor largely served apprenticeship in small mills and factories, usually under the careful and skilful personal guidance of the master, when life in all of its phases was more deliberate, the rule had its growth and was reasonable in the duty it placed upon the employer, and fairly adequate to protect labor. The principal upon which this legal duty rested was largely ethical, that human duty of man to man. But,

"New occasions teach new duties;
Time makes ancient good uncouth."

Conditions in industry have changed with the speed of a revolution. Small mills and factories, with primitive, slow power and simple machinery, under the personal direction of the owner, have fled from the small town and village. Great mills and factories, crowded with complex machinery, driven at great speed with powerful engines, have taken their places in the large centers of active life. Through the production by inventive genius of marvelously efficient machinery, relatively less dependence is placed upon the careful, deliberate skill of the workman of the former time. Demand has arisen for multitudes of operatives, in a large measure young, raw, unskilled and without experience with machinery. From these changed conditions accidents to workmen of a shocking character became alarmingly frequent. The employer did not readily meet the need for the protection of his employes from the dangers of their work, and the employes, hurried and absorbed by their duties, fell victims to conditions. The just conservatism of courts made them hesitate to extend the common-law liability of the employer to fit the changed conditions. The rule was applied generally, and whether the failure of the employer to take any particular precaution for the protection of his employe was a violation of his duty was often uncertain. The State has an interest in the welfare of its citizens, and through its lawmaking power it may impose reasonable burdens on the employers of labor in dangerous pursuits and about dangerous machinery, for the purpose of lessening the danger.

The act of 1899, supra, is the deliberate act of the State by the lawmaking branch of its government to make just provisions for new occasions and changed conditions. The general common-law duty is by it, in some particulars, changed, extended, added to, enlarged and made absolute and specific. Under this act the duty of the employer to protect his employes from the dangers of power shafting, such as that operating appellees' machines, by reasonably efficient guards, which can be applied without impairing the effectiveness of the shafting, and which will prevent dangerous contact with the employes while engaged in their duties, becomes an imperative one. Employes do not assume the risk of injury from shafting left unguarded by a violation of the duty of the employer. The failure to comply with the statute, which specifically requires such shafting to be guarded, is negligence per se, for which the employer is bound to respond in damages to an employe injured thereby. Monteith v. Kokomo, etc., Co. (1902), 159 Ind. 149, 58 L. R. A. 944, 64 N.E. 610; Green v. American Car, etc., Co. (1904), 163 Ind. 135, 71 N.E. 268; Buehner Chair Co. v. Feulner (1905), 164 Ind. 368, 73 N.E. 816; Robertson v. Ford (1905), 164 Ind. 538, 74 N.E. 1; Bessler v. Laughlin (1907), 168 Ind. 38, 79 N.E. 1033; United States Cement Co. v. Cooper (1909), 172 Ind. 599, 88 N.E. 69; Espenlaub v. Ellis (1904), 34 Ind.App. 163, 72 N.E. 527; Baltimore, etc., R. Co. v. Cavanaugh (1905), 35 Ind.App. 32, 71 N.E. 239; Robbins v. Fort Wayne Iron, etc., Co. (1908), 41 Ind.App. 557, 84 N.E. 514; Evansville Hoop, etc., Co. v. Bailey (1909), 43 Ind.App. 153, 84 N.E. 549; Crawford & McCrimmon Co. v. Gose (1909), 43 Ind.App. 373, 87 N.E. 709; Hohenstein-Hartmetz, etc., Co. v. Matthews (1910), 46 Ind.App. 616, 92 N.E. 196.

Being highly penal and in derogation of the common law, it is perhaps to be strictly construed, but it is not to be wantonly narrowed, limited or emasculated and rendered ineffective to work its just and beneficent purpose by a strained construction contrary to the intent of its enactment, as shown by the existing wrongs and conditions intended to be remedied, and the declaration of its title, that it is an act providing means for the protection of the liberty, safety and health of laborers in mills, factories, etc.

While the employe does not assume the risk of injury from machinery left unguarded in violation of the employer's statutory duty, which necessarily inheres in his employment with and about it, he is still bound to use reasonable and ordinary care to guard himself from injury therefrom, and a failure to do so, resulting in his injury will preclude a recovery by him, notwithstanding the employer's neglect of duty. Davis Coal Co. v. Polland (1902), 158 Ind. 607, 92 Am. St. 319, 62 N.E. 492; Monteith v. Kokomo, etc., Co., supra; Buehner Chair Co. v. Feulner (1905), 164 Ind. 368, 73 N.E. 816; United States Cement Co. v. Cooper, supra; Espenlaub v. Ellis, supra; Buehner Chair Co. v. Feulner (1902), 28 Ind.App. 479, 63 N.E. 239; Baltimore, etc., R. Co. v. Cavanaugh, supra; Robbins v. Fort Wayne Iron, etc., Co., supra.

In this case the shafting was not guarded. It could have been guarded without impairing its usefulness. Such shafting, within reach of the clothing and person of the employe, is notoriously dangerous. The failure on the part of appellees to discharge their statutory duty was actionable negligence. Their failure to guard the shaft, as the law enjoins, together with the whirling...

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