Mansfield v. Wagner Electric Manufacturing Co.

• Decision Date: 08 June 1922
• Citation: 242 S.W. 400,294 Mo. 235
• Parties: LOUIS MANSFIELD, Appellant, v. WAGNER ELECTRIC MANUFACTURING COMPANY
• Court: Missouri Supreme Court

242 S.W. 400

294 Mo. 235

LOUIS MANSFIELD, Appellant, v. WAGNER ELECTRIC MANUFACTURING COMPANY

Supreme Court of Missouri, Second Division

June 8, 1922

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.

Affirmed.

W. B. & Ford W. Thompson for appellant.

(1) The facts as established by the evidence present the following problem for this court: Plaintiff, while working as an employee of defendant and using an emery wheel, which was not guarded as the statutes provide, suffered a permanent injury to one of his eyes, due to the absence of the guard, which the law makes mandatory upon the defendant to supply. Sec 7839, R. S. 1909; Sec. 6798, R. S. 1919. The particles of dust arising from the use of the unguarded emery wheel got into the eye of defendant, and injured his eye. The lower court held that such a guard was only required to protect the inhalation of the dust, and that an injury to the eye (which could not have happened, had the guard been supplied) was not one contemplated by the statute, viz., that notwithstanding the fact that such a guard would have taken off all the dust yet since the dust was not inhaled, plaintiff could not recover. We submit that this decision is clearly erroneous, and that the judgment should be reversed.

Charles A. Houts and Thomas J. Cole for respondent.

The injury complained of is not one sought to be guarded against by the provisions of the statute upon which the petition is based, and the trial court's action in giving an instruction in the nature of a demurrer to the evidence was proper. Sec. 6798, R. S. 1919; Glaser v. Rothschild, 221 Mo. 180; Denton v. Ry. Co., 90 Kan. 51; Wing v. Smith, 190 Ill.App. 275; Kavanagh v. Ry. Co., 187 N.Y.S. 862; Platt v. Material Co., 4 Ga.App. 164; Drennen Co. v. Jordan, 181 Ala. 570; Fluker v. Brew. Co., 201 N.Y. 40; Morrissey v. Railroad, 15 R. I. 271; Willson v. Colo. Co., 57 Colo. 306, 317; Gorris v. Scott, 9 L. R. Exchequer, 125; Walsh v. Bridge Co., 44 Ont. L. R. 125, 131; Railroad Co. v. White, 43 Canada S.Ct. 627; Pollock on Torts (10 Ed.) p. 205; 29 Cyc. 438.

OPINION

DAVID E. BLAIR, J.

The action is in damages for personal injuries. From a judgment in favor of the defendant entered upon a directed verdict, plaintiff has appealed.

Plaintiff was in the employ of defendant at the time of his injury. He was engaged in polishing a large metal casting with a movable emery wheel. This casting was too heavy to be moved to and held against a stationary emery wheel. The movable emery wheel had no hood connected with a blower or suction fan. Particles flying either from the casting or the wheel by reason of the operation of the rapidly revolving emery wheel entered one of plaintiff's eyes, and caused the injury for which he prayed damages in the sum of $ 10,000.

While not expressly pleading the statute in terms, plaintiff bases his action upon Section 7839, Revised Statutes 1909 (now Sec. 6798, R. S. 1919, as amended by Laws 1919, p. 443). So much of said statute as need be quoted here reads as follows:

"Every person, firm or corporation using any polishing wheel or machine of any character which generates dust, smoke or poisonous gases in its operation, shall provide each and every such wheel or machine with a hood, which shall be connected with a blower or suction fan of sufficient power to carry off said dust, smoke and gases and prevent its inhalation by those employed about said wheel or machine; . . ."

At the conclusion of plaintiff's evidence the trial court instructed the jury that under the pleadings, the law and the evidence, its finding must be for the defendant. In obedience to said instruction the jury returned its verdict in favor of the defendant, and judgment against plaintiff was entered upon the verdict. Plaintiff's motion for new trial made some point concerning the court's rulings on evidence, but the main ground is alleged error in directing a verdict for the defendant. The applicability of the foregoing statute is the only ground for reversal urged here by appellant. His position in this court is stated as follows:

"The particles of dust arising from the use of the unguarded emery wheel got into the eye of defendant (plaintiff) and injured his eye. The lower court held that such a guard was only required to protect (from) the inhalation of the dust, and that an injury to the eye (which could not have happened, had the guard been supplied) was not one contemplated by the statute, viz., that notwithstanding the fact that such guard would have taken off all the dust, yet since the dust was not inhaled, plaintiff could not recover. We submit that this decision is clearly erroneous, and that the judgment should be reversed."

The words "plaintiff" and "from," put in parenthesis, were inserted by us to clarify the statement.

Plaintiff cites no decision of this or any other State in support of his contention that the injury sustained by him was of such character as to come within the foregoing statute. Looking to the statute, the hood, connected with the blower or suction fan of sufficient power to carry off dust, smoke and poisonous gases, is required for the purpose of preventing injury or disease through the inhalation of such smoke, dust or gas by those required to operate polishing wheels or machines. Unless we construe the statute to cover other injuries than those received through inhalation, that is, through breathing such substances into the lungs, plaintiff cannot recover, even though defendant may have violated the provisions of said statute.

We have found no case construing this statute, but analogous rulings have been made in this and other states. In Rutledge v. Mo. P. Ry. Co., 110 Mo. 312, 19 S.W. 38, one of the allegations of negligence was "that at the place where plaintiff was injured defendant did not have the space between the guardrail and the main rail blocked, by reason whereof his arm was caught between the rail and guardrail and crushed." In discussing this allegation of negligence, Thomas, J., at the top of page 322, said: "And we also think the failure to block the main and guardrails ought not to be submitted to the jury as a ground of recovery. Blocking is intended to prevent feet from being caught and held, and not hands and arms."

In Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, the plaintiff, who was an invitee and not an employee, fell into an elevator pit and was injured. The statute there under consideration, Section 6435, Revised Statutes 1899, required hatchways, elevators and well holes upon every floor of every manufacturing, mechanical or mercantile or public building in this State to be protected by trap doors, hatches, safety catches or strong guardrails. Said section was part of an act relating to the health and safety of employees. It was held that plaintiff did not come within the class of persons for whose protection said statute was enacted and he had no just cause of complaint because the trial court refused to instruct the jury that the plaintiff had the right to presume that the premises through which it was necessary for him to pass in going to the water closet were in reasonably safe condition.

In Denton v. Railway Company, 90 Kan. 51, it was held that in order for the violation of a criminal statute to constitute actionable negligence, the injury complained of must be of the sort the legislation was intended to prevent. The statute against obstructing a street crossing by a train for more than ten minutes at a time was aimed at prevention of delay to travel on the highways, and acts in violation of such statute did not necessarily constitute negligence for the purposes of an action in which plaintiff relies upon the fact that the position of the cars, by obscuring his view of the track, prevented his seeing an engine approaching on another track in time to avoid collision. Mason, J., quoted from 21 Am. & Eng. Ency. Law 481, as follows: "It is believed that as a general rule evidence of the violation of a statute or ordinance can tend to show actionable negligence only where the consequences particularly or generally contemplated by the provision in question have ensued from its violation."

And also quoted from 29 Cyc. 438, as follows: "In order to render the violation of a statute or ordinance actionable negligence the consequences which resulted from such negligence must have been those contemplated by the provision."

And also quoted from Chicago G. W. Ry. Co. v. Minn., St. P. & S. S. M. Ry. Co., 100 C.C.A. 41, 45, as follows:

"'Negligence' is a breach of duty. Those only to whom that duty is due and who have sustained injuries of the character its discharge was designed to prevent can maintain actions upon it."

In Wing v. Smith, 190 Ill.App. 275, an employee was injured while polishing a plate with a revolving wheel. The plate flew out of his hands and struck him in the eye. The negligence counted upon was violation of statutes requiring a hood or hopper on said wheel and requiring a guard and devices to enclose, fence, cover or protect said wheel. The full text of said statutes is set out at pages 278 and 279 of the opinion. The court said:

"It is obvious that the purpose of the Act of 1897 was to protect workmen from dust, and that there was no intention to protect from the kind of accident that occurred in this case. It is quite likely that the act could have been complied with and still left the machinery in such condition that this accident would have happened. But if there was a causal relation between the failure to comply with the Statute of 1897 and the injury, we are still of the opinion...