Monteith v. Kokomo Wood Enameling Co.
| Decision Date | 25 June 1902 |
| Citation | 64 N.E. 610,159 Ind. 149 |
| Parties | MONTEITH v. KOKOMO WOOD ENAMELING CO. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Howard county; Hiram Brownlee, Judge.
Action by Frank L. Monteith against the Kokomo Wood Enameling Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Transferred from appellate court under Act March 13, 1901 (Acts 1901, p. 590). Reversed.
B. C. Moon, for appellant. Blacklidge, Shirley & Wolf, for appellee.
This was an action for a personal injury alleged to have been sustained by the appellant, while in the employment of the appellee, in consequence of the neglect of the appellee to perform a statutory duty owing to him. A demurrer to the complaint for the insufficiency of the facts stated was sustained, and, the appellant refusing to amend, judgment was rendered against him. The ruling on the demurrer is assigned for error.
The material averments of the complaint are as follows: The appellee was on October 4, 1900, a corporation, and owned and carried on a factory in the city of Kokomo, Ind. On said day, the appellant was, and for some weeks had been, employed by and working for the appellee at its said factory. In the course of his employment, and in pursuance of the instructions of the appellee, the appellant was engaged in operating and using a small circular saw driven by steam at a high rate of speed. During the whole time the appellant was so employed, there was a defect in the machinery so used by him, which was known to the appellee, and which consisted in the absence of a guard over the said saw; the appellee having negligently failed to provide any such guard. In consequence of such defect, and of the negligence of the appellee in failing to provide such guard, the appellant, on the day aforesaid, while in said employment, was injured by the contact of his left hand with the said saw while he was operating the same; his thumb and two fingures being cut off. The sufficiency of the complaint is contested upon the ground that the defect which caused the supposed injury, and the dangerous condition created by it, were necessarily open and obvious; that the appellant was bound to take notice of them; and that it appears that, with knowledge of the danger, he assumed the risk. The question is, can an employé recover for an injury resulting from an obvious defect in machinery, resulting from the employer's failure to perform a statutory duty? In other words, is the complaint bad because it does not aver that the appellant was ignorant of the dangers arising from the failure of the employer to guard the saw?
Under the rules and maxims of the common law, where the danger is obvious, and known to and appreciated by the servant, if he continues in the employment without inducement through the promise of the master to repair or make safe, he waives his right to hold the master responsible for injury occurring to him from the negligence of the master, and assumes the risk of such injury himself. If the danger is as well known or as manifest to the servant as to the master, and is understood by him, the servant enters or continues in the employment at his own risk. Pennsylvania Co. v. Sears, 136 Ind. 460, 34 N. E. 15, 36 N. E. 353; Railroad Co. v. Kemper, 147 Ind. 561, 47 N. E. 214;Whitcomb v. Oil Co., 153 Ind. 513, 55 N. E. 440;Railway Co. v. Sandford, 117 Ind. 265, 19 N. E. 770;Greenleaf v. Railroad Co., 29 Iowa, 14, 4 Am. Rep. 181;Lindsay v. Railroad Co., 50 C. C. A. 298, 112 Fed. 384.
It is entirely clear, however, that, where an absolute and specific duty to guard or fence dangerous machinery is imposed upon the master by statute, such new condition must in a very material manner affect the relations of the parties, and modify to a considerable extent their rights and duties as they existed at common law. And here a distinction is to be noted between statutes such as the employers' liability act (Acts 1893, p. 294: Burns' Rev. St. 1901, §§ 7083-7087), which provide, in general terms, that the employer shall be liable for injuries to an employé where the injury is occasioned by reason of defects in the condition of ways, works, plant, tools, and machinery, etc., and statutes which require of the employer the performance of a specific duty, such as to guard or fence dangerous machinery. Statutes of the former class do little more than declare the rule of the common law. Statutes of the latter class impose specific obligations. A failure to comply with the requirements of the first may or may not be negligence. A violation of the second is an unlawful act or omission, a plain breach of a particular duty owing to the servant, and generally constitutes negligence per se. Railway Co. v. Burton, 139 Ind. 357, 37 N. E. 150, 38 N. E. 594; Railway Co. v. Conoyer, 149 Ind. 524, 48 N. E. 352, 49 N. E. 452; Shirk v. Railroad Co., 14 Ind. App. 126, 42 N. E. 656; 1 Thomp. Neg. (1901) p. 12, §§ 10, 11; Id. p. 207, § 211; Railroad Co. v. Young, 81 Ga. 397, 7 S. E. 912, 12 Am. St. Rep. 320; Thompson v. Wright, 22 Ont. 127.
Although the complaint makes no reference to the statute, the action is founded upon section 9 of the act of March 2, 1899 (Acts 1899, p. 234; Burns' Rev. St. 1901, § 7087i), entitled “An act concerning labor, and providing means for protecting the liberty, safety, and health of laborers, providing for its enforcement by creating a department of inspection, and making an appropriation therefor, repealing all laws in conflict therewith.” Section 9 contains this provision: “All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws, and machinery of every description therein shall be properly guarded.” Section 25 of the act declares that “any person who violates or omits to comply with any of the provisions of this act *** shall be deemed guilty of a misdemeanor, and on conviction shall be fined not more than fifty dollars for the first offense, and not more than one hundred dollars for the second offense, to which may be added imprisonment for not more than ten days; and, for the third offense, a fine of not less than two hundred and fifty dollars and not more than thirty days' imprisonment in the county jail.” The act does not in terms give a right of action to the person injured, nor is any part of the penalty recoverable by or payable to such person. The general rule is that when a statute requires an act to be done by one person for the benefit of another, and an injury is sustained by one intended to be protected, by reason of a violation of such statutory duty, an action lies in favor of the latter against the former for the neglect to perform such duty, even though the statute gives no special remedy. Com. Dig. “Action upon the Case” (A); Whart. Neg. § 443; Bish. Noncontract Law, § 132; Pauley v. Lantern Co., 131 N. Y. 90, 29 N. E. 999, 15 L. R. A. 194;Willy v. Mulledy, 78 N. Y. 310, 34 Am. Rep. 536; 1 Thomp. Neg. p. 508, § 8; Cooley, Torts, 654; Osborne v. McMasters, 40 Minn. 103, 41 N. W. 543, 12 Am. St. Rep. 698, and note. The later American and English cases qualify the general rule to this extent: That the right to bring an action for damages for an injury resulting from the breach of a statutory duty depends on the purview of the legislature in the particular statute, and the language which they have there employed. Atkinson v. Waterworks Co., 2 Exch. Div. 441; Hayes v. Railroad Co., 111 U. S. 228, 239, 4 Sup. Ct. 369, 28 L. Ed. 410.
What, then, is the scope of the statute under consideration? Its title indicates its purpose. It is, “An act concerning labor, and providing means for protecting the liberty, safety and health of laborers.” The object of many of its provisions is to reduce the hazards of certain employments in which machinery is used. Its effect is to impress upon certain kinds of machinery, such as saws, planers, cogs, gearing, belting, or shafting, in any manufacturing establishment, the character of dangerous machinery, and to interdict their use by the employer unless properly guarded. Before the passage of the act of March 2, 1899, what was the position of laborers in factories where exposed saws, planers, etc., were used? If they saw and realized the danger attending the use of such machinery, they must either have assumed the risk of injury from it, or quit their employment. No law required the employer to put up a fence or guard, and he was relieved from liability in case of injury to his employé. The expressed purpose of the act being to secure the safety of the laborer, how is that object to be accomplished through its instrumentality? A violation of its provisions may be punished by fine and imprisonment of the employer or certain of his representatives. But in case of injury the laborer would derive no benefit from a criminal prosecution. The state has an interest in the preservation of the lives, the limbs, and the health of all of its citizens; and for this reason, on grounds of public policy, the legislature may enact laws for their safety and protection when employed in factories or other places where dangerous machinery is used. The laborer has a much greater interest in the preservation of his own safety than has the public. The statute is designed primarily and chiefly for his benefit, and upon a violation of its provisions, and a consequent injury to him, he has a right of action and a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the terms thereof. The public wrong may be redressed by fine and imprisonment. The private injury can be compensated only by the payment of damages to the injured workman. Zimmerman v. Baur, 11 Ind. App. 607, 613. 614, 39 N. E. 299; Dresser, Employers' Liability, pp. 246, 247, 594.
So far the law is plain. But at this point we are met by the rule, “Volenti non fit injuria.” In the case of a violation of a specific statutory duty by the...
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