National Candy Co. v. Miller

• Decision Date: 09 March 1908
• Docket Number: 2,661.
• Citation: 160 F. 51
• Parties: NATIONAL CANDY CO. v. MILLER
• Court: U.S. Court of Appeals — Eighth Circuit

160 F. 51

NATIONAL CANDY CO. v. MILLER

No. 2,661.

United States Court of Appeals, Eighth Circuit.

March 9, 1908

William R. Gentry (J. E. McKeighan and M. F. Watts, on the brief) for plaintiff in error.

William R. Scullin (Harry H. Haeussler, George A. H. Mills, and F. A Chopin, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and PHILIPS, District Judge.

PHILIPS District Judge.

This is a writ of error to have reviewed the judgment obtained by the defendant in error (hereinafter designated the plaintiff) against the plaintiff in error (hereinafter designated the defendant) for personal injury. At the time of the injury the plaintiff was a minor between 16 and 17 years old, well developed mentally and physically. The defendant was conducting a candy factory in the city of St. Louis, and the plaintiff was in its employ as an operator. The cutting machine at which he worked is best illustrated by the two exhibits hereto attached:

(Image Omitted)

(Image Omitted)

When at work the plaintiff stood at the side of the machine where the revolving belt, A, ran. The candy was placed by a fellow workman named Nemuth, who prepared it, on the table, E, from which the plaintiff took it, placing it upon a cardboard on the belt, A, to be run under and cut into squares by the knives. The belt, A, is the conveyor passing over two rollers, like an ordinary belt in a factory. The knives were under the box or hood, B, to protect them, and prevent any one from coming in contact with them when working about the machine. Protruding from beneath this hooded box were wooden guards or fingers, marked 'C' in Exhibit 1, and 'X' in Exhibit 2. The candy, when placed on the cardboard as the belt revolved, was carried directly under the finger guards to the knives. The object of the finger guards, extending the length of the knives, was to prevent the hand or fingers of the operator from being carried too near to the moving knives. After the candy was thus passed under the knives, and cut into strips, it came out upon a table, designated as 'D' in Exhibit 1.

As some of the candy would slip, and not be cut into the desired shape in passing through the knives, that portion of it would be sprinkled by the operator with a little sugar kept in the bucket marked 'F' in the exhibit, and carried back on the cardboard by this operator, and again placed on belt A, and run through the knives, turning it out at right angles to its former position.

Exhibit 2 shows the box guard over the knives removed. The finger fenders stand out beyond the knives, just high enough to admit the cardboard and candy to pass freely thereunder to the knives.

The plaintiff had been at work at this place from two to three days before the accident, and was fully instructed by the foreman as to the manner of operating the candy in passing to the knives, and how to hold his hand and fingers on the cardboard in guiding it. The manner of holding the hand, as was customary, and as he was directed, was to hold the palm perpendicularly, toward the finger guards, as he steered the candy with his finger tips, his thumb and finger being on the cardboard behind the candy, so that the palm of his hand in the movement would come to the finger guard, when he should at once disengage his hand. He had seen the knives, knew their position and manner of operation, and was fully advised of the danger of permitting his hand, or his fingers to pass under the guard. The grounds of negligence imputed by the petition to the defendant, whereby he claims that his hand passed beyond the guard, and came in contact with the knives, are (1) that the defendant negligently required him to operate a machine which was unsafe and dangerous, because its operation exposed him, and brought him in close proximity to said revolving blades; (2) that he was compelled, in guiding the candy into said machine, to have his hands on the candy in close proximity to the revolving blades; (3) that the defendant failed to instruct him in the operation of the machine, or warn him of the danger of having his hand drawn into the same; (4) that the defendant negligently furnished him candy unsafe and unfit to be passed into the machine, as it was at the time of a soft, sticky, clinging substance, not sufficiently cooled, and not provided against the contingency of its sticking to said knife blades; (5) that the defendant failed to provide proper and sufficient guards or shields around said blades; (6) that at the time of the accident there was in force in the state of Missouri the following provisions of the statute, to wit: Rev. St. 1899, Secs. 6433, 6434 (Ann. St. 1906, p. 3217):

'Sec. 6433. Belting, etc. To be Guarded-- The belting, shafting, gearing and drums, in all manufacturing, mechanical and other establishments in this state, when so placed as to be dangerous to the persons employed therein or thereabouts while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments.

'Sec. 6434. Minor Or Woman Not To Clean Or Work In Certain Places About Moving Machinery-- No minor, or woman shall be required to clean any part of the mill, gearing or machinery in any such establishment in this state, while same is in motion, or work between the fixed or traversing parts of any machine, while it is in motion by the action of steam, water or other mechanical power.' The petition charges that defendant disregarded said statutory provisions in failing to safely guard the belt of said cutting machine, and failing to post notices of the danger of coming in contact with them, and requiring the plaintiff, a minor, to work upon and between said cutting machine, and between the fixed and traversing parts of the same while it was in motion. It is quite apparent from the foregoing statement of facts that there is no foundation for the imputed negligence as to the character of the machine which the

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