Johnson v. Bear.

Decision Date04 May 1931
Docket NumberNo. 17175.,17175.
Citation40 S.W.2d 481
PartiesRICHARD JOHNSON, APPELLANT, v. W.R. BEAR, RESPONDENT.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of Lafayette County. Hon. Robert M. Reynolds, Judge.

AFFIRMED.

Whitson Rogers and Lyons & Ristine for appellant.

Blackwell & Sherman and Ike Skelton for respondent.

BOYER, C.

Action for personal injury. As appears from the petition, plaintiff was a farm hand in the employ of defendant. His hand was injured while working about an ensilage cutter by being caught in the machinery, cogs and chain of a revolving apron forming a part of the cutter and being operated in connection with it. The injury occurred August 6, 1928, the extent of which is described, and the petition alleges: "That said revolving apron is so constructed that the chain and cog wheels on the lower part thereof were open, exposed, unguarded and dangerous;" that the cutter was being used by defendant on his farm to cut fodder into ensilage and was in his exclusive possession and control. The negligence alleged is set forth in the following paragraph:

"Defendant was negligent in this, to-wit: that he placed and maintained said ensilage cutter and the feeder apron, chain, and cogs thereon in such a position as to be dangerous to plaintiff and other persons working thereabout, while plaintiff and said other persons were engaged in their ordinary duties, and although it was possible to safely and securely guard said ensilage cutter without decreasing its efficiency or interfering with its operation, the defendant negligently failed to do so, in direct violation of section 6786, Revised Statutes of Missouri, 1919, as a direct result of which plaintiff suffered the above described injuries. While performing his duties as such feeder, as directed by defendant, as a direct result of said negligence of defendant, plaintiff's right hand was caught in the machinery, cogs, cog wheels, and chain of said apron of said ensilage cutter, and injured as herein alleged."

Defendant filed a demurrer to the petition on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained, to which action plaintiff excepted and declined to plead further. Whereupon the court found the issues for defendant and against plaintiff, and ordered and adjudged that plaintiff take nothing and defendant go hence. Plaintiff has duly appealed, and in his brief and argument presents the single point that section 6786, Revised Statutes 1919, requires an ensilage cutter to be guarded while in use on a farm and therefore the demurrer was erroneously ruled. Respondent contends that said section does not apply, and for that reason no cause of action is stated. It is the position of both parties that the alleged cause of action is based entirely upon a violation of the statute.

OPINION.

Does the section named apply to the farm as well as to the factory and "other establishments" included in its terms? This is the question to be answered. The section reads as follows:

"Section 6786. Belting, etc., to be guarded. — The belting, shafting, machines, machinery, gearing and drums in all manufacturing, mechanical and other establishments in this State when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments. Whenever the industrial inspector, or his assistant, or deputy, finds that guards have not been installed or notice of danger posted, as required by the provisions of this section, he shall at once, in writing, order the owner or owners, or the person or persons in charge of the machinery, plant, establishment, or place, to make the alterations, additions, or repairs necessary within ten days; and if the said alterations, additions, or repairs be not made within ten days from the date of such order, then such failure to make such alterations shall be deemed a violation of this article, and in addition to the penalties hereinafter prescribed for such violations, the inspector, or his assistant or deputy, shall be and is hereby empowered to, and he shall seal said defective appliance or appliances in such a manner as to render the same inoperative until said order of the inspector has been complied with. [R.S. 1919, Sec. 7828, amended Laws 1919, p. 443.]"

Appellant insists that the words "manufacturing, mechanical and other establishments" are broad enough to include the farm, and that dangerous machinery there in use must be securely guarded when possible; that the section must have a liberal construction; and in construing the meaning of "other establishments" the rule of ejusdem generis is not to be applied; and that the statute applies to the use of machinery at all places where employees must come in close contact with it.

Appellant cites four cases which he claims sustain his contention. They are the following: Stoll v. Frank Adams Electric Co., 213 Mo. App. 395, 240 S.W. 245; Pavlo v. Forum Lunch Co., 19 S.W. (2d) 510; Henderson v. Heman Construction Co., 198 Mo. App. 423, 119 S.W. 1045; Goodson v. Luce, 24 S.W. (2d) 682.

In the Stoll case defendant conducted a store, designated as an electric shop, on the floor of which were rows of electric stoves and electric washing machines. The machines were so arranged as to create a narrow aisle. Plaintiff was a saleswoman and it was her duty to sell anything in the store that customers wanted. It was her duty to demonstrate the washing machines with their various attachments. She sought to demonstrate one of these machines and while she was doing so a person was trying to pass her in the narrow aisle as she stood close to the machine. Her hand was caught in the rollers of the machine which were not guarded. The court held, in view of the preceding section, which specifically mentions mercantile establishments as ones required to deal with the factory inspector, that the section requiring machinery to be guarded should be construed to apply to mercantile establishments as well as to manufacturing and mechanical establishments. It was further held that there was no occasion or reason to apply the rule of ejusdem generis to restrict the natural and broad meaning which would be applied to the words "other establishments." This case reached the Supreme Court (State ex rel. Frank Adams Electric Co. v. Allen, 299 Mo. 25) on writ of certiorari. The writ was quashed on the ground that the opinion did not conflict with any previous opinion of the court. The opinion was written by a commissioner and was adopted by the court en banc in the following manner: Two judges concur; two judges concur in result, and three judges dissent.

In the Pavlo case defendant was conducting a cafeteria in which it used and operated a bread cutter, in the use of which one of its employees was injured. The statute was said to apply, apparently on the ground that defendant was operating an "establishment" within the meaning of its terms.

In the Henderson case the defendant moved various pieces of machinery to the site of the construction of a viaduct. Among the machinery moved to that place and put to use was a saw upon which an employee was injured. Defendant was engaged in sawing lumber of all kinds and for various purposes. It had upon the ground hoisting machines, concrete mixers, and an office building. These were being used in the work of constructing the viaduct. The appliances were not enclosed in any building. Defendant was held liable under the guarding statute and in the course of the opinion (l.c. 436) is this language:

"This defendant was undoubtedly engaged in a branch of manufacturing or mechanical work and its appliances used were as much included within this law as if they had been housed and covered up and all under roof. It was engaged in a manufacturing and mechanical enterprise requiring the use of machinery."

In the Goodson case defendant was operating a trunk factory and the employee was injured while working at an unguarded stitching machine.

We fail to find anything in the foregoing cases that is of any material assistance in the solution of the question in hand. There is no construction to the effect that an ensilage cutter or other machinery, when in use upon a farm, is covered by the statute or that a farm is an "establishment" within the meaning of its terms. We are without precedent in this State to aid in the decision of the precise question presented in the case at bar.

In the case of Adams v. Thayer, 222 Mo. App. 907, one of the defenses presented was that defendant was engaged solely in agricultural pursuits and there was no legal duty resting upon him to provide any guard for a power-driven circular saw for the protection of a farm laborer. The question as to whether section 6787, Revised Statutes 1919, providing that all power-driven circular saws must have safety guards, applied to farmers as well as to those engaged in a manufacturing or mercantile business was presented but not decided because the petition was sufficient to constitute a cause of action for negligence at common law.

The Supreme Court of Iowa in the case of Plew v. James Horrabin & Co., 176 Ia. 584, 157 N.W. 453, in construing a statute which provided a duty on the part of a person in charge of any manufacturing or other establishment where machinery is used to properly guard machinery, held that an employee who was injured while placing a pin in the working parts of a self-propelling concrete mixer mounted on wheels,...

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