State v. Rodgers

• Decision Date: 16 December 1910
• Docket Number: No. 21,632.,21,632.
• Citation: 175 Ind. 25,93 N.E. 223
• Parties: STATE v. RODGERS.
• Court: Indiana Supreme Court

175 Ind. 25

93 N.E. 223

STATE

v.RODGERS.

No. 21,632.

Supreme Court of Indiana.

Dec. 16, 1910.

Appeal from Circuit Court, Jennings County; F. M. Thompson, Judge.

Homer Rodgers was charged with crime, and from a judgment quashing the indictment, the State appeals. Affirmed.James Bingham, A. G. Cavins, E. M. White, and W. H. Thompson, for the State. Dixon & Meloy, for appellee.

MYERS, C. J.

Appellee was sought to be charged with the violation of section 8029, Burns' Ann. St. 1908, by an indictment omitting the formal parts as follows: “That one Homer Rodgers, late of said county, on the 15th day of March A. D., 1909, at said county and state aforesaid, being then and there the owner of and the person in charge of a certain manufacturing establishment for the manufacture of lumber and wood products, in which establishment a certain saw, to wit, a certain swinging cut-off saw, was then and there used, did then and there unlawfully fail and neglect to properly guard the aforesaid saw, contrary to the form of the statute in such cases made and provided.” The indictment was quashed on motion, and the state appeals. The indictment was quashed as we understand the record, for failure to allege that it was practicable to guard the saw without rendering it useless for the purpose for which it was intended. The statute provides that, “all vats, pans, saws, planers, cogs, gearing, belting, shafting, set screws, and machinery of every description therein (referring to manufacturing and other plants described) shall be properly guarded.” The statute recognizes the use of saws, and the machinery and appliances as lawful and necessary; its prohibition extends to the manner of their use. The Legislature has characterized saws as in themselves dangerous, and has provided that they shall be properly guarded.

What is meant by the phrase “properly guarded”? It is a relative term, and involves the extent of guarding, and the question of the efficiency for the purpose used. To say that a swinging cut-off saw was not properly guarded would be to state a conclusion and not a fact. The state contends that if it was important to show that the saw could not have been guarded it might have been shown as a defense, and that it was a matter for the jury, and not a question of law, and that it is sufficient to charge an offense in the language of the statute, and that is true where the statute defines the offense, and states what acts or omissions constitute it. But that is not true where the statute does not define the offense, and where other sections must be looked to as here, or where the act as here is held necessary to be supplemented by some other elements, or where some other element is involved, as practicability of guarding. Vinnedge v. State (1906) 167 Ind. 415, 79 N. E. 353. Here we have a general statute providing precautions in the operation of manufacturing plants in many particulars, and among other things provides that certain defined machinery shall be properly guarded. Another section-section8045, Burns' Ann. St. 1908-provides that “any person who violates or omits to comply with any of the provisions of this act *** shall be deemed guilty of a misdemeanor.” It has been held that it is not sufficient under this act even in a civil action to charge that a party failed to properly guard a prescribed specific appliance, machine or place defined by the statute. There must be coupled with it some allegation showing that it is practicable to guard the machine, appliance, or place to work so as not to render it inefficient for the use intended. Bessler v. Laughlin (1907) 168 Ind. 38, 79 N. E. 1033;La Porte, etc., Co. v. Sullender (1905) 165 Ind. 290, 75 N. E. 277;Robertson v. Ford (1905) 164 Ind. 538, 74 N. E. 1;National Drill Co. v. Myers (1907) 40 Ind. App. 322, 81 N. E. 1103;Kintz v. Johnson (1906) 39 Ind. App. 280, 79 N. E. 533;National, etc., Co. v. Roper (1906) 38 Ind. App. 600, 77 N. E. 370;Cook v. Ormsby (Ind. App. 1909) 89 N. E. 525;Paul Mfg. Co. v. Racine (1909) 43 Ind. App. 695, 88 N. E. 529;Glenns Falls Co. v. Travelers' Ins. Co. (1900) 162 N. Y. 399, 56 N. E. 897. It was the legislative...