Kirchoff v. Hohnsbehn Creamery Supply Co.
| Decision Date | 20 November 1909 |
| Citation | 123 N.W. 210,148 Iowa 508 |
| Parties | DIETRICH KIRCHOFF, Appellant, v. HOHNSBEHN CREAMERY SUPPLY CO |
| Court | Iowa Supreme Court |
Appeal from Bremer District Court.--HON. J. F. CLYDE, Judge.
ACTION for damages resulted in a verdict and judgment for the defendant. The plaintiff appeals.
Reversed.
Hagemann & Farwell and E. A. Dawson, for appellant.
Sager & Sweet, for appellee.
The defendant was engaged in manufacturing butter tubs and other creamery supplies, and in doing so operated machines such as a planer, groover, saws, and the like by steam power. The planer consisted of a steel shaft about three inches square on which were bolted two blades about eighteen inches long and two and one-half inches wide. These were on opposite shoulders of the shaft, and extended over an eighth of an inch. There were bolts on the other shoulders by which to fasten blades when needed. The shaft was hung in an opening about six inches wide in a table or platform, and at either end was a pulley over which a belt run from the shaft below and ordinarily turned the planer three thousand five hundred revolutions per minute. In front were feed rollers which carried the board being planed over the knives. The only guard was It extended up and over to about the center of the knives, so that one feeding the machine could not see them. There was no other guard. In the morning of November 30, 1906, the plaintiff was engaged in planing tub bottoms about thirteen inches in diameter. He had his mittens on, and was putting the bottoms in or "feeding," and, as these came through, one Cook removed them from the other side. The evidence tended to show that, after several bottoms had passed through, the speed of the planer ran down, and another employee put rosin on the belt; also, that shavings piled up back of the machine. In the words of plaintiff: The result was the loss of his hand, because of which he demanded for damages. Several errors are assigned by appellant, of which appellee contends were without prejudice, for that the evidence was insufficient to sustain the allegations of his petition.
The court required the jurors to determine whether the machine was dangerous, and instructed them that, if it was, defendant should have informed plaintiff of the dangers, and otherwise it owed him no such duty. Exception is taken to this instruction, for that it is said to ignore the factory act directing that "all saws, planers, cogs, gearing, belting, shafting, set screws, and machinery of every description therein shall be properly guarded." Section 4999-a2, Code Supp. 1907. If the machine was not "properly guarded," the operation of it constituted negligence, and in that sense it must be regarded as dangerous. Woolf v. Nauman, 128 Iowa 261, 103 N.W. 785. This being so, it was not material that similar planers were in use in some other factories, or that they were of standard make. O'Connell v. Smith & Son, 141 Iowa 1, 118 N.W. 266. "The statute is intended as a protection, not only against the carelessness and ignorance of those who may incidentally come in contact with dangerous machinery while moving about in its vicinity, but it is also intended as a protection to the operatives themselves, who by reason of inadvertence or some misfortune may be injured by it." Callopy v. Atwood, 105 Minn. 80 (117 N.W. 238, 18 L.R.A. (N. S.) 593). See, also, Kinyon v. Railway, 118 Iowa 349; Bromberg v. Laundry Co., 134 Iowa 38, 111 N.W. 417.
Was this planer "properly guarded" within the meaning of the law? If the proof was such that but an issue of fact was raised, the jury should have been advised of the provisions of the statute, and instructed what would constitute a proper guard. If it appeared conclusively that the machine was not "properly covered," it should have been so told, and that in permitting its operation in that condition the defendant was guilty of negligence.
The record is convincing that it was not "properly guarded." To guard the saw it must have been covered in some way, and Webster's Dictionary defines "cover:" "To overspread the surface of one thing with another; to envelop; to shelter; to protect; to lay or set over; to extend over." The Century Dictionary: "To put something over, or on so as to protect or conceal; overlay; overspread; envelop with something." The Standard Dictionary: "To overspread or overlay with something so as to protect or hide overlap." As employed in this statute, the manifest meaning is that something shall be put over the machine so as to protect those coming in proximity of or using it from being injured from the planing knives. What such guard shall be is not specified save in exacting that it shall be proper. According to the lexicographers, "proper" means "fit, suitable, appropriate"; and to be guarded "properly" is to be so covered as to reasonably accomplish the design of guarding. A planer or other instrumentality mentioned in the statute is properly guarded when the device attached is of material and construction such as will shield those operating it or moving near it from contact therewith when in motion, at least when practicable, without unreasonably interfering with the efficiency of the machine. If not reasonably suitable and calculated for this purpose, the cover is not proper, and the proprietor in omitting to obey the mandate of the statute is guilty of negligence. As previously stated, the tin or sheet-iron hood guard extended from above the front roller over to above the center of the blades. This protected the person feeding the planer in pushing boards in, but left the knives entirely unguarded further back. In other words, the covering was of but half the planer, and the evidence is undisputed that the other half might have been covered without interfering with its efficiency in operation. Indeed, the evidence was to the effect that in all the larger factories planers are provided with blowers, and had been for many years. The blower is described as a sheet-iron hood cut so as to fit the machine and joined to a pipe with a fanning attachment, so that the suction draws all the shavings from the machine. It covers the knives so that it is impossible to get into them without removing it. Where...
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