Curtis & Gartside Co. v. Pribyl
| Decision Date | 22 July 1913 |
| Citation | 134 P. 71,38 Okla. 511,1913 OK 468 |
| Parties | CURTIS & GARTSIDE CO. v. PRIBYL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 4029 of the Compiled Laws of Oklahoma, 1909, 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.
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 employé, 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.
Instructions given examined, and held, not to be prejudicial error.
Where there is any substantial evidence reasonably tending to sustain the verdict of the jury, this court on review will not disturb the same.
Additional Syllabus by Editorial Staff.
In a factory employé's action for injuries, the exclusion of evidence of the result of experiments, and the refusal of an offer to perform experiments in the presence of the jury, under conditions similar to those under which plaintiff was injured, if error, was harmless.
In a factory employé's action for injuries, subp nas issued by plaintiff for witnesses who were present when the employé was hurt, but who failed to appear and testify at the trial, were properly admitted in evidence.
Error from Superior Court, Oklahoma County; A. N. Munden, Judge.
Action by James Pribyl against the Curtis & Gartside Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Flynn, Chambers, Lowe & Richardson, Everest, Smith & Campbell, and Hunt C. Hill, all of Oklahoma City, for plaintiff in error.
Fred S. Caldwell and Chas. H. Garnett, both of Oklahoma City, for defendant in error.
This proceeding in error is to review a judgment for $5,000 in favor of the plaintiff, 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 employé." The action was commenced in the lower court on September 25, 1909. In the petition the employé 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 employé 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, is specifically set out. On March 10, 1910, the employé, 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." 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 of the Compiled Laws of Oklahoma 1909 (), provides:
Section 4040 of the Compiled Laws of Oklahoma 1909 (), 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."
Counsel for the company contend that said section 4029 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 employé in this case. On the other hand, in the brief of counsel for the employé 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 employés 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, paragraphs 4, 5, and 6 are as follows:
"4. Section 4 of the factory act (Laws 1903, c. 356; Gen. Stat. 1909, sec. 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. 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 specfic precautionary requirements relating to specified places, structures, and appliances; and in an action founded on the act for damages consequent upon injuries to an employé 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. The protection of the factory act extends only to persons acting within the scope of some...
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