Corry v. Majestic Manufacturing Co.
| Decision Date | 04 January 1916 |
| Citation | 181 S.W. 1076,193 Mo.App. 77 |
| Parties | FRANCIS CORRY, By next friend, Respondent, v. MAJESTIC MANUFACTURING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
AFFIRMED.
Judgment affirmed.
Percy Werner for appellant.
(1) The trial court erred in submitting the case to the jury. Section 7828, Revised Statutes 1909, which requires that "the belting, shafting, machines, machinery, gearing and drums" in all manufacturing establishments, when so placed as to be dangerous to persons therein or thereabout while engaged in thir ordinary duties, shall be safely and securely guarded, when possible, has no application to machines which are operated by foot or hand power. Cole v. Lead Co., 240 Mo. 404; Milligan v. Muir, (4 Series), 19 Scot. Sess. Cas. 18. (2) The statute in question has no application to a mere detail or tool proper of a machine, such as a knife blade. Smith v. Forrester Nace Box Co., 193 Mo. 738; Cole v. Lead Co., 130 Mo.App. 253. (3) Plaintiff was guilty of contributory negligence in using the machine for a purpose for which, as he well knew, it was not intended or equipped, and in carelessly pressing down the blade upon his fingers. (4) Even if the statutes applied to a machine operated by footpower and to a mere tool thereof, as a knife blade, it (a) has no application where the machine is put to a use other than the ordinary use for which it was intended, designed and equipped; and (b) nor is it competent to show, in order to show the possibility of such a machine so improperly used being guarded, that some inventive genius has designed what he thinks would prove a proper and an efficient guard which he has applied to a different machine. (5) Instruction number 1, given on behalf of plaintiff, is erroneous in instructing that it was sufficient if plaintiff was using the shears for a purpose authorized by the defendant, irrespective of whether it was the purpose for which the machine was provided. Kelley v. Lawrence, 195 Mo. 75. (6) Refused instructions 3 and 5 requested by the defendant should have been given.
Albert E. Hausman for respondent.
(1) The trial court committed no error in submitting this case to the jury. Since the amendment of 1909, all machines are required to be guarded in all manufacturing establishments, when they are so placed as to be dangerous to persons therein or thereabout while engaged in their ordinary duties. Philips v. Hamilton Brown Shoe Co., 178 Mo.App. 196; Austin v. Bluff City Shoe Co. , 176 Mo.App. 546. (2) The statute in question (Sec. 7828, R. S. 1909) requires every part of a machine to be guarded, if so placed as to be dangerous to those employed at or about said machine. Austin v. Bluff City Shoe Co., 176 Mo.App. 546. (3) Plaintiff was not guilty of contributory negligence as a matter of law. Dean v. Woodenware Works, 106 Mo.App 167; Dowling v. Allen, 74 Mo. 13; George v. Railroad, 225 Mo. 364; Wiley v. Gas Co., 132 Mo.App. 380; Zellers v. Mo. Light Co., 92 Mo.App. 107; Brady v. Railroad, 206 Mo. 509; Higberg v. Railroad, 164 Mo.App. 514; Minnia v. Cooperage Co., 175 Mo.App. 91; Brashears v. United Iron Works Co., 171 Mo.App. 507; Lore v. American Mnfg. Co., 160 Mo. 608. (4) If it is possible to guard a machine without interfering with its practical efficiency, the statute requires it to be guarded. Austin v. Shoe Co., 176 Mo.App. 546; Minnia v. Cooperage Co., 175 Mo.App. 91. And whether it can be guarded is a question for the jury. Daniels v. Goeke, 176 S.W. 301. (5) There was no error in giving or refusing instructions. McCaffery v. Tamm Glue Co., 143 Mo.App. 24; Dunlap v. Mallinckrodt, 159 Mo.App. 49; 1 Labatt on Master and Servant, vol. III, sec. 923.
--This is an action to recover for personal injuries sustained by plaintiff, a minor, alleged to be due to the neglect and failure of defendant corporation to guard a certain machine at which plaintiff was working when injured, in alleged violation of section 7828, Revised Statute 1909. The trial below resulted in a verdict and judgment for plaintiff, and the case is here upon defendant's appeal.
Plaintiff, a boy eighteen years of age, suffered an injury resulting in the loss of a finger and portions of other fingers of his right hand, while engaged as defendant's servant in operating a cutting machine in defendant's factory. Plaintiff had been in defendant's employ for about three months. His duties were to cut certain metal sheets into rectangular strips and then to cut off the corners thereof and bend such strips into the required shape. The first of these operations was performed upon a cutting machine or "shears," at which he was working when injured, and which is also referred to as machine No. 1. When cutting a certain "pattern" from such metal sheets, not only were the rectangular strips cut out on machine No. 1, but the corners thereof were also cut off with this machine; but it appears that in cutting the metal for another "pattern" in which work plaintiff was engaged when injured, the corners of the rectangular strips were cut off on another machine specially arranged therefor, known as machine No. 2, when this machine was in working order. However, the evidence adduced in plaintiff's behalf goes to show that machine No. 2 frequently became dull or out of order, so that it would not cut off the corners of these metal strips, and that under such circumstances this would be done on machine No. 1, after having placed the strips in machine No. 2 in order to mark them for cutting.
Upon the occasion in question plaintiff, he says, cut out certain metal strips on machine No. 1, and went to machine No. 2 to cut off the corners thereof. His testimony is that the latter machine was out of order, and that he therefore marked those strips on this machine and returned with them to machine No. 1, to cut off the corners thereof. This machine, it appears, when operated for the purpose of cutting out the rectangular strips, was fed from the rear; but when it was utilized to cut off the corners of strips, as it was in this instance, it was fed at the front thereof. It was a simple machine for cutting metal of this character, operated by foot power. The cutting portion thereof is said to have consisted of two blades, the lower of these, being fixed in the table upon which the sheets of metal were placed, remained immovable. The upper blade, or knife, was held up, a short distance from the table, by a coil spring at either side of the machine, and was made to descend, when desired, by operating the foot pedal.
The evidence shows that at the time of plaintiff's injury the machine was covered with oil,--a condition in which the machine was purposely kept by defendant, and that the metal strips which plaintiff was holding were themselves very oily and slippery. Plaintiff testified that he placed one of these rectangular strips of metal under the upper blade of the machine, keeping his fingers a few inches back from the blade itself, to cut off one of the corners thereof, and with his foot operated the foot pedal, when the metal strip slipped forward and his hand went beneath the descending blade, whereby he was injured.
Plaintiff's testimony is that when he began work in defendant's factory, defendant's foreman sent him to an experienced employee, one Melton, telling him to follow Melton's instructions as to doing his work; that shortly thereafter machine No. 2 became out of order, and that Melton, in showing plaintiff how to perform his duties, used this machine to mark the metal strips to show where the corners were to be taken off, and took such strips to machine No. 1 with which the corners were actually cut off; and that Melton told plaintiff that this was "the way to do." And plaintiff's evidence goes to show that he had frequently done this very thing before, when "No. 2" was out of order, and that other employees did this from time to time, all to the knowledge of defendant's foreman. It appears that machine No. 2 was frequently out of order, and that it was customary for plaintiff and others, upon such occasions, to use machine No. 1 for cutting off the corners of the metal strips to be used for the pattern which plaintiff was making when injured. And, as said, the evidence is that in cutting strips for another pattern this machine was regularly used for cutting off the corners.
In behalf of plaintiff there was competent testimony tending to show that this machine could readily have been guarded by putting a strip of metal in front of the cutting blade thereof, supported at each side of the machine, and raised slightly above the table thereof to enable the metal strips, which were fed into the machine one at a time, to pass thereunder. The evidence shows that such a guard could have been very readily and cheaply attached to the machine, and that it would have operated to effectually guard against injuries to the operator thereof of the character here in question, without in any way impairing the efficiency of the machine.
Appellant insists that the demurrer to the evidence should have been sustained. Appellant's contention is that this machine was not within the purview of the statute (Section 7828 supra), because of the fact that it was a foot power machine. This argument does not appeal to us as being sound. Appellant has pointed us to no case, involving a statute such as this, wherein any such ruling has ever been made. The case of Millugan v. Muir, 19 Scot. Sess. Cas. (4th Series) 18, is based upon a radically different statute, and is no authority for appellant's proposition. Appellant also relies upon what is said in Cole...
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