Messick v. McEntire

• Decision Date: 08 April 1916
• Docket Number: 20347
• Citation: 97 Kan. 813,156 P. 740
• Parties: MESSICK v. MCENTIRE ET AL.
• Court: Kansas Supreme Court

156 P. 740

97 Kan. 813

MESSICK v. MCENTIRE ET AL.

No. 20347

Supreme Court of Kansas

April 8, 1916

Syllabus

In an action under the Workmen’s Compensation Act (Laws 1911, c 218), the admitted facts showed that plaintiff was injured by being caught in the revolving cylinders of a machine while standing in or upon it and applying compressed air for the purpose of cleaning the cylinders. Covers or hoods were provided for use when the machine was in operation, but in order to clean the machine the covers had to be removed. The plaintiff could have stood on the ground and applied the air without danger of coming in contact with the revolving cylinders. On these facts, and others stated in the opinion it is held that plaintiff is not barred from the right to recover compensation by the provision of section 1 of the compensation act, on the ground that his injury resulted from his deliberate intent to cause the injury or from his willful failure to use a guard provided for him as protection against accident.

Appeal from District Court, Shawnee County.

Action by B. F. Messick against George P. McEntire and another, partners. From a judgment for plaintiff, defendants appeal. Affirmed.

Sherman & Landon, of Kansas City, Mo., and Edwin A. Austin, of Topeka, for appellants.

A. E. Crane, of Atchison, and F. T. Woodburn, of Holton, for appellee.

OPINION

PORTER, J.

This is an appeal from a judgment in plaintiff’s favor under the Workmen’s Compensation Act. The plaintiff was in the employ of the defendants at their mattress factory in Topeka. He was in charge of a felting machine, the cylinders and rollers of which are covered with sharp teeth and prongs to tear cotton apart. In order to protect workmen from injury by these revolving surfaces, there are safety covers or hoods which completely cover the cylinders or rolls when in operation. It becomes necessary from time to time to clean the machine because the teeth of the cylinders become matted with cotton. In cleaning the machine the safety covers are removed. Some rolls are removed from the machine and scraped separately with a wire brush. Other cylinders and rolls are not removable and are scraped as they are turned by hand. Compressed air is used to blow bits of cotton and dust remaining on the surfaces of the cylinders. There is a tube from a tank of compressed air with a hose and nozzle by which the air is applied. On the morning of the accident, the plaintiff took off the five removable cylinders and cleaned them. He then cleaned with the wire brush the remaining cylinders or rolls in the machine, turning each by hand little by little as became necessary. He then put the machine in motion under the power of the factory, applied the air, took the hose, and climbed upon the endless belt of wooden slats in the middle of the machine with the cylinders revolving under power beyond his control. In some way he lost his balance, and in trying to save himself struck his hand on the inturning surface of the main cylinder and received his injuries. There is practically but one contention raised by the defendants, and it is that the act of the plaintiff in turning on the power and climbing upon the machine after the hoods or covers were removed constitutes a willful failure to use a guard or protection provided by his employer for his protection against accident--a willful failure within the terms of the compensation act, which provides that an injury so resulting to the workman shall be disallowed. It is claimed that upon the undisputed evidence the court must assume that plaintiff’s injury resulted from his deliberate intention to cause the injury.

The Workmen’s Compensation Act contains a provision that:

"If it is proved that the injury to the workman results from his deliberate intention to cause such injury, or from his willful failure to use a guard or protection against accident required pursuant to any statute and provided for him, or a reasonable and proper guard and protection voluntarily furnished him by said employer, or solely from his deliberate breach of statutory regulations affecting safety of life or limb, or from his intoxication, any compensation in respect to that injury shall be disallowed." Laws 1911, c. 218, § 1.

The plaintiff testified that he had always cleaned the rolls and cylinders in the same way....