Henschell v. The Union Pacific Railway Company
| Decision Date | 03 July 1908 |
| Docket Number | 15,344 |
| Citation | 78 Kan. 411,96 P. 857 |
| Parties | EDWARD HENSCHELL, a Minor, etc., v. THE UNION PACIFIC RAILWAY COMPANY |
| Court | Kansas Supreme Court |
Decided July, 1908.
Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. PRACTICE, SUPREME COURT--Transcript of the Record. The fact that the clerk of the trial court in preparing the transcript of the record attached to the petition in error incorporated therein a part of the original files in the case instead of copies is not a ground for dismissing the proceedings in error.
2. MASTER AND SERVANT--Injury to Servant--Guarding of Machinery. The provision of the "factory act" (Laws 1903, ch. 356, § 4) that "all . . . cog gearing . . . used in a manufacturing establishment shall where practicable, be properly and safely guarded, for the purpose of preventing . . . injury to the persons employed . . . in any such establishment," contemplates that such gearing shall be screened, enclosed or covered--that is, that a barrier of some sort shall be interposed to keep the employees from coming in contact therewith; it does not require the remodeling of machinery or the addition of any attachments excepting those of the character indicated.
3. MASTER AND SERVANT--Evidence that It Was Practicable to Guard Machinery. In an action under the portion of the factory act above quoted it is ordinarily incumbent upon the plaintiff to produce evidence that it was practicable to guard the machinery which occasioned the injury complained of.
J. W. Dana, for plaintiff in error.
R. W. Blair, H. A. Scandrett, and B. W. Scandrett, for defendant in error.
Edward Henschell prosecutes error from a judgment rendered against him upon the sustaining of a demurrer to his evidence in an action brought by him against the Union Pacific Railway. Company to recover damages for injuries received by having his hand caught in the cog-wheels of a machine which he operated in the defendant's repair-shops.
The case comes here by a transcript, not by a case-made. The evidence was brought upon the record, not by a bill of exceptions, but by the authentication of the stenographer, as provided in section 1 of chapter 320 of the Laws of 1905. A motion to dismiss is made on. the ground that the provisions of this statute were not. complied with. The plaintiff prepared a document containing a statement of all the proceedings that had been had, including the evidence, which he caused to be settled as a case-made. After proceeding thus far he concluded not to rely upon a case-made. He therefore had the stenographer attach a certificate that certain enumerated pages of the document contained a true and correct transcript of all the evidence, with all objections and exceptions and rulings thereon, and filed the whole with the clerk of the trial court. There is attached to the petition in error what purports to be a transcript of the record, although it apparently consists of the document originally prepared as a case-made. These considerations do not show any ground for dismissal. This case differs from Marty v. City of Rosedale [*], which was dismissed at the last session of the court under somewhat similar circumstances. There, however, the stenographer certified that the entire document, which had been prepared as a case-made, contained the evidence, but it was not possible to tell from the certificate what portion of the contents constituted the transcript of the evidence. Here the pages containing this matter are specifically designated. Of course the clerk of the court of common pleas should have retained the original manuscript authenticated by the stenographer, and should have inserted a copy of it in the transcript of the record to which he attached his own certificate. But the fact that he used the original instead of a copy does not deprive this court of jurisdiction. When the stenographer's transcript of the evidence was filed with the clerk of the trial court it became a part of the record of the case. It is still a part of that record in contemplation of law, although it has been physically removed to this court. The transcript filed here correctly exhibits the proceedings below, and the clerk's mistake in using a part of the original record for a copy is not a ground for dismissal.
The cog-wheels by which the plaintiff was injured required from time to time to be shifted out of gear with each other. This was accomplished by grasping one of them by the rim and pulling it in the direction of its axis. Of course this was to be done only while the wheels were at rest. Power was applied to and cut off from them by...
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Caspar v. Lewin
...of safety would destroy the efficiency of the appliance causing the injury, or would otherwise be impracticable. In Henschell v. Railway Co., 78 Kan. 411, 96 P. 857, this section of the statute was not brought to the of the court and its purpose and effect were not considered. In that case ......
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Thorn v. The Edgar Zinc Company
... ... required by the factory act. (Henschell v. Railway ... Co., 78 Kan. 411, 96 P. 857.) We do not mean to imply, ... ...