Simpson v. Witte Iron Works Co.

• Decision Date: 28 March 1913
• Citation: 155 S.W. 810,249 Mo. 376
• Parties: SIMPSON v. WITTE IRON WORKS CO.
• Court: Missouri Supreme Court

155 S.W. 810

249 Mo. 376

SIMPSON v. WITTE IRON WORKS CO.

Supreme Court of Missouri.

March 28, 1913.

Rehearing Denied April 8, 1913.

1. COURTS (§ 92) — RULES OF DECISION — DICTA.

Remarks in the opinion of the court on the operation of a statute are of no binding effect, where the decision is based solely on the invalidity of the section in question.

2. MASTER AND SERVANT (§ 121) — INJURIES TO SERVANT — FACTORY ACT — NOTICE BY INSPECTORS.

Factory Act (Rev. St. 1909, § 7828) provides that the belting, etc., shall be guarded when possible, and, if not, notice of danger shall be conspicuously posted. Sections 7846-7851 provide that a violation of these provisions shall be punishable as a misdemeanor; and section 7842 declares that whenever the factory inspector finds that the belting, etc., is dangerous to employés and not sufficiently guarded he shall notify the employer to make the necessary alterations and additions within 30 days, failure to comply with which shall be deemed a violation of the act. Held, in view of the first section, notice by the factory inspector is not necessary to render the employer liable for injuries due to failure to properly guard machinery.

3. MASTER AND SERVANT (§ 121) — INJURIES TO SERVANT — SAFE PLACE TO WORK — GUARDING MACHINERY — FACTORY ACT.

Factory Act (Rev. St. 1909, § 7828), providing that the belting, etc., of machinery when dangerous to employés, shall be guarded when possible, and if not guarded notice of danger shall be conspicuously posted, applies only to belting in motion, and has no application to belting not in motion, but stretched across a passageway ready for use; consequently an employé who merely stumbles over the same cannot recover on account of the employer's failure to place a fence around it.

4. STATUTES (§ 64) — INVALIDITY IN PART.

The invalidity of one section of a statute will not destroy other sections, which can subsist in unimpaired vigor and efficiency; consequently the fact that Rev. St. 1909, § 7844, directing that platforms of railroads shall be arranged with a view to safety, which was inserted in the factory act, was declared invalid, because not within the purview of the title of that act, cannot invalidate the remainder of the act, which applies to factories and manufacturing establishments.

Lamm, C. J., and Woodson and Brown, JJ., dissenting in part.

In Banc. Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by Benjamin L. Simpson against the Witte Iron Works Company. From a judgment for plaintiff, defendant appeals. Reversed.

See, also, 144 S. W. 895.

This suit is for personal injuries sustained by plaintiff while in the employment of defendant, a manufacturer of gas and gasoline engines in Kansas City, Mo. For his cause of action plaintiff alleges that he arrived at the factory to begin his day's work about 7 o'clock on November 16, 1909; that while passing through an aisle on his way to a clock, where the workmen were required to register, be was tripped by a belt which was lying in the aisle, and was thrown to the floor and permanently injured; that his injuries were caused from the failure of defendant to comply with the provisions of the statutes of Missouri requiring the guarding of machinery when so placed as to be dangerous to employés. He asks judgment for $7,500 damages. The defendant's answer contained a general denial, a plea of contributory negligence, and assumption of risk.

There was evidence tending to show that the plaintiff was an experienced pattern maker; that it was his duty to pass through a room adjoining the one in which his work was done, for the purpose of registering at a time clock provided by defendant to be used by its employés to record the time of beginning and ceasing their work; that this clock had been recently moved from its former location about 65 feet southwardly, and on the day in question stood on the east side of an aisle or passageway about 10 feet wide, partly across which defendant placed an electric motor carrying a belt, but leaving a space of about 3 feet of aisle not occupied by the motor or belt; that on the morning on which plaintiff was injured he was late on reaching the factory, getting there a little after 7 o'clock, at which hour all of defendant's employés were required to be at their work; that he first entered a storeroom provided for the clothing of employés, and walked through the aisle wherein the motor stood to the clock and register; that there was another aisle west of the one used by plaintiff and known as the main aisle, leading to the clock, which was used by employés in going to register, and which presented a safe passageway. The one chosen by plaintiff was shorter. There was evidence tending to show that the room was illy lighted at that hour of the morning; that the belt over which plaintiff tripped was unguarded and not in use at the time; that the upper rim of the belt stood about 18 or 20 inches above the floor. Plaintiff testified that he did not see the belt until he fell over it. He admitted on cross-examination that he was not looking for the belt, but had his head turned in a direction to see the clock; that after he fell he looked behind and saw that he had been tripped by the belt; that he could have seen it if he had been looking for it. Defendant adduced evidence tending to show that the injuries to plaintiff were caused by his failure to use the other or main aisle leading from the locker to the clock, and by his negligent failure to look out for the belt on the aisle which he did use.

Plaintiff had judgment for $3,750, from which defendant appealed to the Kansas City Court of Appeals. That court transferred the case to this court, upon the theory that a question as to the constitutionality of the statute upon which this action is based is involved under the ruling of this court in Williams v. Railroad, 233 Mo. 666, 136 S. W. 304. When the case came here, it was assigned to Division 1. The judges of that division being equally divided in opinion, the cause was sent to banc.

The errors assigned are that the petition states no cause of action, the refusal of the court to sustain a demurrer to the evidence, and its exclusion of the certificate of the factory inspector, dated November 17, 1909, and also his oral testimony relating to his inspection.

Pierre R. Porter, of Kansas City, for appellant. James G. Smart and Charles R. Pence, both of Kansas City, for respondent.

BOND, J. (after stating the facts as above).

One section of the factory act was reviewed and held to be void, because its subject-matter was not clearly expressed in the title of the act, as prescribed by the Constitution. Constitution of Missouri, art. 4, § 28; Williams v. Railroad, 233 Mo. loc. cit. 680, 136 S. W. 304. The particular section of the factory act then in judgment was the one referring exclusively to railroad platforms, passageways, and other structures on their yards and grounds. It was known as section 20 of the Session Acts of 1891, p. 162, and is now found in the Revised Statutes of 1909, § 7844.

The body and substance of the original factory act, with slight alterations, is contained in the present revision. R. S. 1909, §§ 7827 to 7852, inclusive. This court in the Williams Case, supra, after disposing of the matter then in judgment by deciding that the plaintiff, who had grounded her action upon the aforesaid section of the factory act, could not recover, because "an unconstitutional act is no law at all," proceeded to make some observations as to the applicability of another section of the factory act defining the duties of the factory inspector (Session Acts 1891, p. 161, § 16; R. S. 1909, § 7842), to the one held in judgment (Session Acts 1891, p. 162, § 20; R. S. 1909, § 7844), and intimated that no civil action could be brought for injuries under the section sued upon, even if valid, unless a prior notice had been given by the inspector of the unsafe condition of the platforms, passageways, and other structures in and about the railroad yard to the persons in charge of the place. These remarks of the court were abstract from the matter in judgment; for that had been completely disposed of by the previous correct decision annulling the statute upon which plaintiff's cause of action rested. They appertained to a supposable case, and are not authoritative nor binding on us.

The point not then before the court has now arisen and demands judgment in the case at bar. It grows out of the existence of the section of the statute making it the duty of the factory inspector or his assistant to ascertain all matters of danger to the "health or safety" of employés, and to notify the person in charge of the factory or place to make necessary "alterations or additions" to obviate the reported dangers. That section concludes, to wit: "The factory inspector or assistant inspector shall at once notify the person or persons in charge of such establishment or place to make the alterations or additions necessary within thirty days from the date of such notice, or within such time as said alterations could be made with proper diligence, then such failure to make such alterations shall be deemed a violation of this article." R. S. 1909, § 7842; Session Acts 1891, p. 161, § 12. The section on which plaintiff's suit is founded is, to wit: "The belting, shafting, machines, machinery, 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 conspicuously posted in such establishments." R. S. 1909, § 7828. To determine the relation of these two provisions, regard must be had to their respective terms and purposes, and also to the language and general intent of the Legislature in the enactment...