Streeter v. Western Wheeled Scraper Co.

• Decision Date: 06 June 1912
• Citation: 254 Ill. 244,98 N.E. 541
• Parties: STREETER v. WESTERN WHEELED SCRAPER CO.
• Court: Illinois Supreme Court

254 Ill. 244

98 N.E. 541

STREETER

v.WESTERN WHEELED SCRAPER CO.

Supreme Court of Illinois.

April 18, 1912.

Rehearing Denied June 6, 1912.

Appeal from Appellate Court, Second District, on Error to Circuit Court, Kane County; Duane J. Carnes, Judge.

Action by Milford E. Streeter against the Western Wheeled Scraper Company. From a judgment of the Appellate Court affirming a judgment for defendant, plaintiff appeals. Reversed and remanded.

John M. Raymond and John K. Newhall (R. S. Egan, of counsel), for appellant.

J. C. Murphy and E. L. Lyon, for appellee.

DUNN, J.

The appellant sued the appellee for damages on account of the loss of three fingers of his left hand. The court directed a verdict for the defendant and entered a judgment against the appellant, which the Appellate Court affirmed. A certificate of importance and an appeal to this court were granted.

The appellee operated a factory in which power-driven machinery was used, and employed the appellant to run a jointer-a machine used in shaping and planing wood, having knives, revolving at a speed of 2,600 revolutions a minute, extending along its surface and in plain sight at all times whether the machine was in operation or not. These knives were not covered or protected by a guard or device of any kind. On the second day of his work with the jointer, the plaintiff, while standing by its side, was bumped into by another workman, and in order to prevent himself from being thrown into the unprotected moving belt which operated it, he caught with his left hand the gauge on top of the jointer. His hand, being wet with perspiration, slipped from the gauge into the knives, and three of his fingers were cut off. The appellant contends that appellee was required to inclose or protect the knives of the jointer by ‘an act to provide for the health, safety and comfort of employés in factories, mercantile establishments, mills and workshops in this state, and to provide for the enforcement thereof’ (Hurd's Stat. 1909, p. 1102). The appellant knew that the jointer was a dangerous machine, that the knives were revolving rapidly and were unguarded, and that his fingers would be cut off if he got them in the machine.

Some of the counts of the declaration charge the appellee with negligence, without regard to the statute, either in failing to furnish the appellant a reasonably safe machine with which or a reasonably safe place in which to work. It will be unnecessary to consider these counts, for it may be conceded that but for the statute the appellant would be held to have assumed the risk of the unprotected knives and therefore to be barred of a recovery on those counts, and yet, if the other elements of a recovery were present, he would be entitled to have the cause submitted to the jury on the counts charging a violation of the statute requiring the machine to be protected, unless the appellant can be held to have assumed also the risk incident to such violation of the statute.

[1] It is first contended in support of the judgment that the act imposed no obligation on the appellee until after notification by the factory inspector. Sections 1 and 23 of the act are as follows:

‘Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That all power-driven machinery, including all saws, planers, woodshapers, jointers, sandpaper machines, iron mangles, emery wheels, ovens, furnaces, forges and rollers of metal; all projecting set screws on moving parts; all drums, cogs, gearing, belting, shafting, tables, flywheels, flying shuttles and hydro-extractors; all laundry machinery, mill gearing and machinery of every description; all systems of electrical wiring or transmission; all dynamos and other electrical apparatus and appliances; all vats or pans, and all receptacles containing molten metal or hot or corrosive fluids in any factory, mercantile establishment, mill or workshop, shall be so located wherever possible, as not to be dangerous to employés or shall be properly enclosed, fenced or otherwise protected. All dangerous places in or about mercantile establishments, factories, mills or workshops, near to which any employé is obliged to pass, or to be employed shall, where practicable, be properly enclosed, fenced or otherwise guarded. No machine in any factory, mercantile establishment, mill or workshop, shall be used when the same is known to be dangerously defective, and no repairs shall be made to the active mechanism or operative part of any machine when the machine is in motion.’

‘Sec. 23. Whenever, by the provisions of this act, it is made the duty of any person, firm or corporation within this state, to make or install any alterations, additions or changes, the same shall be made and installed in conformity with the provisions of this act, and completed within a reasonable time after notification by the chief state factory inspector or his deputy.’

Section 25 makes it the duty of the chief state factory inspector and his assistant and deputies to enforce the provisions of the act, and section 26 imposes penalties for their violation.

Section 1 is an unqualified declaration that all machinery and appliances of the character mentioned shall be so located, wherever possible, as not to be dangerous to employés, or shall be properly inclosed, fenced, or otherwise protected. The duty is absolute and not dependent upon any notice from the inspector. Arms v. Ayer, 192 Ill. 601, 61 N. E. 851,58 L. R. A. 277, 85 Am. St. Rep. 357. In that case the statute (Laws 1897, p. 222) required the erection of fire escapes on certain buildings. Section 3 required the factory inspector to serve notice for the erection of such fire escapes upon buildings not provided with fire escapes, in accordance with the act, and section 4 provided that an owner not complying with such notice within 30 days should be fined. It was held that the duty to provide fire escapes was not dependent upon the performance of any duty by the inspector. McRickard v. Flint, 114 N. Y. 222, 21 N. E. 153;Willy v. Mulledy, 78 N. Y. 310, 34 Am. Rep. 536;Rose v. King, 49 Ohio St. 213, 30 N. E. 267,15 L. R. A. 160.

[2] It is next insisted that the statute requires the machinery mentioned in section 1 to be so located as not to be dangerous to employés, or to be properly inclosed, fenced, or otherwise protected, while the allegation and proof are only that the jointer was not protected, without showing that it was so located as to be dangerous to employés. One count, at least, of the declaration described the machine and its whirling knives, so that it was manifest that it could not be so located as not to be dangerous to the employés who were working with it. It was not necessary to use exactly that language, but it was enough to show that the machinery was dangerous to employés and was not protected.

[3] It is urged that the proof does not sustain the allegation that it is practicable to guard the jointer, and to operate it, while so guarded as to be reasonably safe for employés. A witness who was a mechanical engineer and draughtsman testified that he was familiar with the kind of jointer by which the appellant was hurt and the manner of its operation; that such a jointer was in use in the shop of the company by which he was employed; that a guard was used over the knives; and that such guard is a practical device. This evidence tended to prove the practicability of a guard for the jointer.

[4] The serious question in the case is whether the appellant assumed the risk incident to the appellee's violation of the statute. Stated generally, the question is: Does a servant who continues in the master's employ with full knowledge of the violation by the master of a statute passed for the protection of the servant in his work, and of the consequent danger to himself, assume the risk of injury from such violation? There is a hopeless conflict in the answers to this question given by the courts of the various jurisdictions in the United States. The Legislatures of the various states of the Union, as well as Congress, have enacted a great variety of laws intended for the protection of persons working in mills and factories, operating or working with or about railroad trains, cars, locomotives, or other machinery, or working in places or under conditions which, unless special provision is made for their protection, expose them to risks to which they ought not to be subjected. Some of these, as the Railway Safety Appliance Act in Illinois (Hurd's Rev. St. 1909, c. 114, § 231) and the act of Congress (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) on the same subject, expressly provide that an employé shall not be deemed to have assumed the risk because of continuing in his employment, or in the performance of the duties of such employment, after knowledge of the violation of the act. Others declare that no contract of employment shall constitute a defense to any action for an injury caused by a violation of the act, or contain provisions of a similar nature. In still others, as in the statute now before us, no direct provision as to the assumption of risk is found, and in such cases it is held that the master cannot avail himself of the defense of assumption of risk where the injury complained of has resulted from his neglect of the duty imposed upon him by the statute, in Arkansas, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Missouri, Oklahoma, Oregon, North Carolina, Pennsylvania, Vermont, and Washington. On the other hand, it has been held that such defense is available to the master in Alabama, Colorado, Maine, Massachusetts, Minnesota, Montana, New Jersey, New York, Rhode Island, and Wisconsin. The same contradictory decisions are found in the federal courts in different circuits as in the state courts. Johnson v. Mammoth Vein Coal Co., 88 Ark. 243,144 S. W. 722,123 S. W. 1180,19 L. R. A. (N. S.) 646;St. Louis, Iron...