Caspar v. Lewin

• Decision Date: 11 June 1910
• Docket Number: 16,504
• Parties: KATE CASPAR, Appellee, v. WILLIAM LEWIN et al., Appellants
• Court: Kansas Supreme Court

109 P. 657

82 Kan. 604

KATE CASPAR, Appellee, v. WILLIAM LEWIN et al., Appellants

No. 16,504

Supreme Court of Kansas

June 11, 1910

Decided January, 1910.

Appeal from Wyandotte court of common pleas. HUGH J. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FACTORY ACT -- "Manufacturing Establishment." Under section 7 of the factory act (Laws 1903, ch. 356; Gen. Stat. 1909, § 4682), besides certain named establishments any other establishment is a "manufacturing establishment" wherein any natural products or other articles or materials of any kind, in a raw or unfinished or incomplete state or condition, are converted into a new or improved or different form.

2. FACTORY ACT -- Same. An establishment wherein railroad iron, old stoves, old waste iron and scrap iron of every description is cut into lengths known as grade No. 1 grade No. 2, and busheling scrap, by means of machines known as alligator shears and operated by power, to meet standing specifications of mills which purchase the product, is a "manufacturing establishment" within the meaning of the factory act.

3. FACTORY ACT -- Construction -- Statute Not Adopted from Another State. None of the sections of the factory act is a transcript from the law of any other state and consequently had not been given a settled and definite meaning by the highest court of any other state when the statute was enacted.

4. FACTORY ACT -- Duty to Safeguard Machinery Not Limited to Workmen Engaged in "Ordinary" Duties Only. Section 4 of the factory act (Laws 1903, ch. 356; Gen. Stat. 1909, § 4679), relating to safeguards for machinery and appliances, is not limited in its application to workmen engaged in their ordinary duties only. It is designed to protect persons employed or laboring in manufacturing establishments while in the performance of any duty, whether ordinary and general or exceptional and occasional.

5. FACTORY ACT -- Common-law Duty of Master Supplanted by Statutory Duty. The factory act ignores the common-law duty resting on the factory owner or operator to exercise reasonable care to prevent foreseeable injuries and establishes a statutory measure of prudence, by making specific precautionary requirements relating to specified places, structures and appliances; and in an action founded on the act for damages consequent upon injuries to an employee acting in the scope of his duty, caused by the absence of a prescribed safeguard, it is no defense that the injury could not, with reasonable prudence, have been anticipated.

6. FACTORY ACT -- Statute Can Not be Evaded by Rules Relating to Use of Machinery. The protection of the factory act extends only to persons acting within the scope of some employment or labor. But the factory owner can not evade the requirements of the act, as that belt shifters shall be provided, by means of rules or instructions relating to the use of appliances, as that belts shall be shifted only while the machinery is not in motion.

7. FACTORY ACT -- Contributory Negligence of Injured Employee No Defense to Action under the Statute. The civil action for damages authorized by the factory act is not a common-law action, but is a statutory remedy for the enforcement of a positive duty enjoined by law in the interest of the public welfare, and the contributory negligence of the injured employee or laborer is not a defense to such an action. The first paragraph of the syllabus of Madison v. Clippinger, 74 Kan. 700, 88 P. 260, is overruled.

8. FACTORY ACT -- Constitutionality--Police Regulation. The factory act falls within the legitimate scope of the police power of the state, and the remedy prescribed for its enforcement is not obnoxious to either the state or the federal constitution.

9. FACTORY ACT -- Evidence Sufficient to Establish Liability in the First Instance. Under section 6 of the act (Laws 1903, ch. 356; Gen. Stat. 1909, § 4681) it is sufficient, in order to establish liability, for the plaintiff to prove, in the first instance, that death or injury resulted in consequence of failure to provide the required safeguards, or that failure to provide such safeguards directly contributed to such death or injury, and it is not necessary for the plaintiff to go further, in those cases where the subject is pertinent, and prove the practicability of such safeguards. The third paragraph of the syllabus of Henschell v. Railway Co., 78 Kan. 411, 96 P. 857, is overruled.

Jules C. Rosenberger, Clyde Taylor, and Kersey Coates Reed, for the appellants.

John T. Sims, and Angevine, Cubbison & Holt, for the appellee.

BURCH, J. MASON, J. PORTER, J.

OPINION

BURCH, J.:

Tony Caspar was an employee of the defendants, and while at work for them in their establishment suffered injuries which resulted in his death. The plaintiff, his widow, as administratrix of his estate, sued the defendants for the consequent damages in an action founded upon the factory act. She recovered, and the defendants appeal.

The act referred to is chapter 356 of the Laws of 1903 (Gen. Stat. 1909, §§ 4676-4683), the title of which reads as follows:

"An act requiring safeguards for the protection of all persons employed or laboring in manufacturing establishments, and providing civil remedies for all persons so engaged, or their personal representatives, in cases where any such person may be killed or injured while employed or laboring in any manufacturing establishment which is not properly provided with the safeguards required by this act."

Section 1 requires elevators, hoisting shafts and well-holes to be inclosed or secured. Section 2 provides that stairways shall be equipped with handrails, and shall be secured at sides and ends, that certain doors shall open outward, and that such doors shall be kept unfastened. Section 3 provides for fire escapes. Section 4 provides for the guarding of dangerous machinery and appliances. Sections 5 and 6 relate to remedy. Sections 7 and 8 are devoted to definitions of terms. The act relates to manufacturing establishments only, as defined in section 7, which reads as follows:

"Manufacturing establishments, as those words are used in this act, shall mean and include all smelters, oil refineries, cement works, mills of every kind, machine and repair shops, and, in addition to the foregoing, any other kind or character of manufacturing establishment, of any nature or description whatsoever, wherein any natural products or other articles or materals of any kind, in a raw or unfinished or incomplete state or condition, are converted into a new or improved or different form."

The defendants claim they were not owning or operating a manufacturing establishment, and that the deceased was not employed or laboring in such an establishment when he was injured.

The defendants' business consists principally in buying and selling scrap iron, and converting it into shape so that mills can use it without further handling. They buy on the market iron of all grades, including railroad iron, old stoves, old waste iron and scrap iron of any description. Consignments come to them mostly by train from the surrounding country. The iron is unloaded at their yard and graded--that is, sorted out. Some of it they sell as it is--that is, it requires no cutting. Some of it must be cut to suit the requirements of purchasers, as appears from the following testimony of William Lewin, one of the defendants:

"Ques. Others you would cut up more for a matter of convenience in selling, would you, and handling? Ans. No, it would--we would have to cut it up according to specifications of the mill.

"Q. I say, whoever you were selling it to, you would sell it in whatever sizes they wanted it? A. Yes, we did that for their convenience.

"Q. You stated . . . that you cut up iron there according to the specifications of the mill? A. Yes, sir.

"Q. Will you just explain to us what you mean by that? A. Well, iron is graded in different grades. There is grade No. 1, and No. 2, and a grade called busheling scrap. Grade No. 2 must be cut all under eight inches. Grade No. 1 must be all over eight inches, and busheling scrap is this sheet iron, cut eight inches and under.

"Q. As I understand the situation, then, you got an order from the mill to cut certain lengths; that is what you were doing? A. Standing specifications.

"Q. Well, specifications from the mill? A. Yes, from the mill.

"Q. That is the person to whom you sold the iron? A. Well, not direct--yes, some of it was sold to the mill direct, while others went through the hands of brokers.

"Q. Well, in any event, you were required, in order to sell it, to cut it to certain lengths? A. Not necessarily; we can sell it the way it is without cutting it.

"Q. I know, but you do cut it certain lengths? A. We did.

"Q. Cut it certain lengths to supply a demand for it? A. A good portion of it; yes."

The iron was cut by a machine called "alligator shears," equipped with a loose and a tight pulley. A line shaft, probably 100 feet long, was supported near the top of the building in which the shears were located. On this shaft was a pulley, and power was transmitted from the pulley on the shaft to the pulleys on the machine by a belt. Three pairs of shears, operated in this manner, were in use in the establishment.

It is not disputed that the iron, as it came into the yard and after it was sorted out, was a kind of material capable of being wrought into the form of a manufactured product, and so falls within the purview of section 7. The word "raw" is a relative term, and means simply not yet changed by some process of treatment or fabrication. The words "unfinished" and "incomplete" likewise refer to a state or condition not yet attained, and mean simply not fully fashioned to meet some...