Millsap v. Beggs

• Decision Date: 05 November 1906
• Citation: 97 S.W. 956,122 Mo. App. 1
• Parties: MILLSAP v. BEGGS.
• Court: Missouri Court of Appeals

97 S.W. 956

122 Mo. App. 1

MILLSAP v. BEGGS.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

Rehearing Denied December 3, 1906.

1. MASTER AND SERVANT—INJURIES TO SERVANT —GUARDING MACHINERY.

A horizontal metal shaft with steel knives fastened thereon, and revolving so that it acted as a planer, constituted a shafting within Rev. St. 1899, § 6433, requiring shafting to be guarded.

2. SAME.

Rev. St. 1899, § 6433, requiring all shafting, when so placed as to be dangerous, to be safely guarded when possible, and, if not possible, requiring notice of the danger to be conspicuously posted, means that, if the machinery may be guarded and is not, it is negligence, even though a notice is posted, and, if it is not guarded because it cannot be, it is still negligence unless a notice is posted.

3. SAME.

A failure to comply with the statute is negligence per se.

4. SAME—CONTRIBUTORY NEGLIGENCE.

Notwithstanding a master's noncompliance with the statute and an injury to a servant from the appliance, it is a good defense that the servant was negligent in a manner contributing to his injury.

5. SAME—SCOPE OF EMPLOYMENT.

Where the regular work of a servant employed in a factory was that of planing axletrees, and he was injured while planing a narrow stick of timber at the request of one of his fellow workmen, he was not outside of his assigned duty, where it appeared that it was a rule for a workman to do special small jobs or render any kind of temporary service in the course of the business whenever requested by a fellow workman.

6. SAME—GUARDING MACHINERY.

Rev. St. 1899, § 6433, requires all shafting, etc., when so placed as to be dangerous to persons employed thereabout, to be securely guarded, when possible. Held that, in an action for injuries sustained by a servant on a machine not properly guarded, it is no defense that the machine was a reasonably safe one.

7. SAME—WARNING SERVANT.

Rev. St. 1899, § 6433, provides that all shafting, etc., when so placed as to be dangerous to persons employed thereabout, shall be safely guarded, when possible, and, if not possible, that notice of its danger shall be conspicuously posted. In an action for injuries to a servant while tending a machine not properly guarded and in regard to which no notice was posted, the court instructed that if notice was not necessary, and plaintiff was instructed how to operate the machine or warned of the danger, or by observation was aware of the danger, then the posting of notice was not necessary. Held, that the instruction was error, as eliminating the absence of notice from the determination of the jury on the question of contributory negligence.

Appeal from Circuit Court, Carroll County; Jno. P. Butler, Judge.

Action by William R. Millsap against Samuel Beggs. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Lozier, Morris & Atwood, for appellant. Russell Kneisley and Conkling & Rea, for respondent.

ELLISON, J.

The defendant was the owner and operator of a wagon factory, and plaintiff was his employé. In operating the factory defendant maintained therein certain shafting and machinery constituting a planer or jointer, which plaintiff charges was dangerous to persons employed in and about the plant. Plaintiff alleges that, while engaged in performing services for defendant as his employé, his hand came in contact with the blades of the planer and was badly injured. He recovered judgment in the trial court for such injury.

The action is based upon the following statute (section 6433, Rev. St. 1899): "The belting, shafting, 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 conspiciously posted in such establishments." As the defendant disputes that the machinery which inflicted the injury is of the kind named in the statute, we will first determine that point, since in settling that there follows, in reality, a determination of much of the contention between the parties; for, if it is once found that the evidence places the case under the provisions of the statute, its disposition is much simplified. The machine is thus described in plaintiff's petition, viz.: A machine "consisting of a horizontal and rapidly revolving metal shaft, with steel knives fastened thereon and protruding upward through a slot or opening in an iron table, the said shaft and knives revolving at the rate of 4,000 revolutions per minute; the machine being run by steam power transmitted by belting and used in the rapid planing and shaving of timbers." The evidence corresponded to such description, but further showed in detail that the shaft was about 20 inches long and 3 inches in diameter, and the knives fastened therein were 14 inches in length, and the machine was used by pushing with the hand the timber to be planed over the iron table through which the knives protruded, and thus coming in contact with the knives the timber would be planed or jointed as desired. We conclude that this horizontal instrument with the knives fastened therein was a "shafting," in the sense and meaning of the statute. We think it wholly unlike the machine described in Smith v. Forrester Box Co., 193 Mo. 715, 92 S. W. 394, and that that case is not applicable. It is conceded that there were no guards about the machine, and as the statute directs that there shall be, "when possible," the plaintiff undertook to show, and introduced evidence at the trial tending to show, that it was practicable to reasonably safely guard the machine. But the statute aforesaid demands of the employor, in the event of a safeguard being "not possible," that "then notice of the danger shall be conspiciously posted." In view of this provision, it was an unnecessary burden assumed by the plaintiff in proving negligence by showing that this machine might have been guarded; for, if it is the instrumentality or machine contemplated by the statute, and from its nature cannot be guarded, then the duty arises to post the notice, and a failure to post is negligence per se. The evident meaning of the statute is that, if the machinery may be guarded and is not, it is negligence, even though a notice is posted; and, if it is operated and is not guarded because it cannot be, it is still negligence unless a notice is posted. The Supreme Court of this state in an opinion by Judge Gantt, and each of the Courts of Appeals since, decided that a failure to comply with the statute was negligence per se. Lore v. American Mfg. Co., 160 Mo. 608, 61 S. W. 678; Colliot v. Mfg. Co., 71 Mo. App. 171; Stafford v. Adams, 113 Mo. App. 724, 88 S. W. 1130; Bair v. Heibel, 103 Mo. App. 632, 77 S. W. 1017. Whether, when a case is made out showing defendant's culpability under the statute, he can be allowed recourse to the doctrine of the employés assumption of obvious risk as distinguished from ordinary risk (Knisley v. Pratt, 148 N. Y. 372, 42 N. E. 986, 32 L. R. A. 367; O'Maley v. Gas Co., 158 Mass. 135, 32 N. E. 1119, 47 L. R. A. 161; Anderson v. Lumber Co., 67 Minn. 79, 69 N. W. 630), need not be considered; for whether, under certain conditions of knowledge, plaintiff assumed the risk of injury, was submitted to the to the jury as a question of fact in an instruction offered by defendant. And we do not think the evidence will justify us in saying that such assumption of risk was so clearly established as to justify a peremptory instruction in defendant's behalf. So that in this case, if such defense is allowable (a point we do not decide), defendant had the benefit of it.

But, notwithstanding the master's guilt by noncompliance with the statute, he may yet successfully defend himself by showing that the employé was himself negligent in such way as to have contributed to his own injury; for, though no guards are placed when they might have been, and though (if they could not have been) no notice was posted, yet the employé cannot knowingly thrust himself against the dangerous machinery. There was such an issue in this case, and it was recognized by the trial court in giving instructions for each party on that head. The verdict of the jury in plaintiff's favor has abundant evidence in this respect in its support. If the danger in working as plaintiff was when injured was not so patent and obvious that a man of common prudence would not have been engaged as was the plaintiff, he...