Curtis & Gartside Co. v. Pribyl
| Decision Date | 22 July 1913 |
| Docket Number | Case Number: 2407 |
| Parties | CURTIS & GARTSIDE CO. v. PRIBYL. |
| Court | Oklahoma Supreme Court |
¶0 1. MASTER AND SERVANT--Safe Appliances--Factory Act--Construction. Section 4029, Comp. Laws 1909 (Rev. Laws 1910, sec. 3746), which provides: --was designed to protect persons employed and laboring in manufacturing establishments while in the performance of any duty, whether ordinary or general, exceptional or occasional. (a) But its protection extends only to persons acting within the scope of some employment.
2. SAME--Assumption of Risk--Violation of Factory Act. Where a master or owner of a factory violates the law requiring "belt shifters or other mechanical contrivances for the purpose of throwing on or off belts or pulleys whenever practicable" to be provided, and "all machines" to be provided "with loose pulleys * * * and * * * belting * * * and machinery of every description," an employee, though working with knowledge of that violation, does not assume the risk of injury. (a) A master who relies on the assumption of risk has the burden of proof.
3. APPEAL AND ERROR--Master and Servant--Trial--Objections--Presentation Below -- Instructions. Instructions given examined, and held, not to be prejudicial error.
4. SAME--Verdict--Evidence. Where there is any substantial evidence reasonably tending to sustain the verdict of the jury, this court on review will not disturb the same.
Flynn, Chambers, Lowe & Richardson, Everest, Smith & Campbell, and Hunt C. Hill, for plaintiff in error.
Fred S. Caldwell and Chas. H. Garnett, for defendant in error.
¶1 This proceeding in error is to review a judgment for $ 5,000 in favor of the plaintiff in a case wherein the defendant in error, as plaintiff, sued the plaintiff in error, as defendant, for damages on account of personal injuries alleged to have been sustained on October 18, 1908, while employed in a manufacturing establishment owned and operated by said defendant. The plaintiff in error will be herein referred to as "the company" and the defendant in error as "the employee." The action was commenced in the lower court on September 25, 1909. In the petition the employee charges: (1) Failure of the company to provide safe and suitable machinery and appliances in the department in which he worked for his protection and safety in the performance of the duties of his employment, and to maintain the same in a safe and suitable condition and location for his use in said employment; and (2) that the company negligently and wrongfully provided machinery and appliances that were defective, and thereby dangerous to the safety of the said employee in the performance of the duties of his employment. In the petition the respects in which the place is unsafe, and the machinery is defective, and thereby dangerous, are specifically set out. On March 10, 1910, the employee, over the objection and exception of the company, was allowed to amend his petition by adding thereto an additional paragraph as follows:
"And the defendant likewise wrongfully and negligently failed and neglected to provide the machinery aforesaid, to wit, the said rip saw and the said shaft, with a belt shifter or other mechanical contrivance for the purpose of throwing on or off the belt aforesaid connecting the pulleys attached thereto, and to provide the said rip saw and the said machinery with loose pulleys, and to properly guard the said belt and rip saw and shaft, by reason of all of which the said belt and machinery were rendered unsafe and dangerous to the plaintiff in the performance of his duty aforesaid."
¶2 Defendant moved to strike said amendment on the ground: (1) That it was neither germane to the petition or the facts therein pleaded; nor (2) were the facts competent, relevant, and material to any issue raised in said cause, nor stated any grounds or cause of negligence for which the company was liable. The motion to strike was overruled, and exceptions saved. After issues were joined and the trial begun before a jury, the defendant objected to the introduction of any evidence on the ground that the petition did not state a cause of action, and saved its exceptions to the disallowance of the said objection. 1. Section 4029, Comp. Laws 1909 ([Rev. Lows 1910, sec. 3746], section 7, article 5, Sess. Laws 1907-08, p. 508), provides:
¶3 Section 4040, Comp. Laws 1909 ([Rev. Laws 1910, sec. 3756], section 18, article 5, Sess. Laws 1997-08, p. 512), provides:
"Any person, firm, or corporation, who fails to comply with any provision of this article, except as otherwise provided, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in a sum not less than ten dollars nor more than one hundred dollars for each offense."
¶4 Counsel for the company contend that said section 4029, supra, applies only to those who handle or operate such machinery, and that the failure to comply with such requirement by the company is not the proximate cause of the injury to the employee in this case. On the other hand, in the brief of counsel for the employee it is insisted that it was "the intention of the Legislature in the enactment of said section to provide safeguards and protection from danger to all employees whose duties might bring them in dangerous proximity to the machinery described in the statute," and "that the provision as to loose pulleys and as to properly guarding belting, shafting, etc., is as much for the protection of those whose duties require them to work around such machinery and to pass and repass near it, or in any way come close enough to it to become in danger, as it is for the benefit of those whose duties require them to shift belts from one pulley to another, or directly handle the machinery." The Kansas Factory Act, enacted by the Legislature of 1903, contains provisions substantially the same as sections 4029 and 4040, supra (sections 4676 and 4683, General Statutes of Kansas 1909). In Caspar v. Lewin et al., 82 Kan. 604, 109 P. 657, syllabus paragraphs 4, 5, and 6 are as follows:
"4. Section 4 of the Factory. Act (Laws 1903, c. 356; Gen. Star. 1909, sec. 4676), 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 the injury could not, with reasonable prudence, have been anticipated.
The following cases support the proposition that section 4029 requires such machinery to be so guarded, if practicable, as to reasonably protect such workmen from injury, whether actually operating the machinery or engaged in the discharge of any other duties as an employee in the factory, mill or shop: Christianson v. Northwestern Comp. Board Co., 83 Minn. 25, 85 N.W. 826, 85 Am. St. Rep. 440;...
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