The Fowler Packing Company v. Enzenperger

• Citation: 77 Kan. 406,94 P. 995
• Decision Date: 07 March 1908
• Docket Number: 15,240
• Parties: THE FOWLER PACKING COMPANY v. JOSEPH ENZENPERGER, JR., a Minor, etc
• Court: United States State Supreme Court of Kansas

94 P. 995

77 Kan. 406

THE FOWLER PACKING COMPANY v. JOSEPH ENZENPERGER, JR., a Minor, etc

No. 15,240

Supreme Court of Kansas

March 7, 1908

Decided January, 1908.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--"Factory Act"--Protection of Employees. The principal purpose of that provision of the factory act which requires owners or operators of manufacturing establishments properly and substantially to enclose or secure elevators hoisting-shafts and well-holes is to protect the lives and limbs of employees at work in such establishments.

2. MASTER AND SERVANT -- Failure Properly to Enclose Elevator -- Prima Facie Evidence of Negligence. Two freight-elevators, without enclosures or coverings, were operated in a single enclosed shaft, in a six-story packing-house, and while barrels were being loaded on one of the elevators through a door of the shaft at the sixth floor a barrel was allowed to fall down the shaft upon an employee then at work upon the other elevator at the fourth floor, thereby injuring him. Held, in an action to recover damages for the injury, that the failure of the owner of the packing-house to enclose and make secure the elevator on which plaintiff was at work was prima facie evidence of negligence within the meaning of the factory act, and that the defendant is liable to the plaintiff for the injury suffered by him in consequence of such neglect.

3. MASTER AND SERVANT -- Instructions -- Master's Duty to Guard Machinery. The statement of the court in an instruction that the defendant was required to enclose and secure the elevators did not impose a higher duty upon the defendant in this case than is prescribed by the statute which provides that elevators shall "be properly and substantially enclosed or secured, in order to protect the lives and limbs" of employees. (Laws 1903, ch. 356, § 1.)

4. PETITION--Injury to Employee--Specific Reference to "Factory Act" Unnecessary. In order to avail himself of the protection of the factory act it was not necessary that plaintiff should plead or make specific reference to that act in his petition. It is sufficient to plead such acts of negligence as bring the case within the rule of the statute.

5. EVIDENCE--Testimony Withheld--Presumption. As a general rule the omission by a party to produce important testimony relating to a fact of which he has knowledge and which is peculiarly within his own reach and control raises the presumption, open to explanation, of course, that the testimony, if produced, would be unfavorable to him.

O. H. Dean, W. D. McLeod, H. C. Timmonds, O. C. Mosman, J. E. McFadden, and R. E. Morris, for plaintiff in error.

E. L. Fischer, L. W. Keplinger, and C. W. Trickett, for defendant in error.

OPINION

JOHNSTON, C. J.:

This was an action by Joseph Enzenperger, jr., to recover damages for injuries sustained by him while in the employ of the Fowler Packing Company. He was employed to haul meat in trucks from floor to floor of the defendant's six-story packing-house. The trucks were carried from the different floors on two freight-elevators, operated in a single shaft. These elevators, which were merely moving platforms, without protection from above or on the sides and without a center partition between them, were operated from the fifth floor, and were used for freight only, the employees being required to walk up and down the stairways. The elevator-shaft was enclosed, but the elevators operating in it were not. Double doors opened into the shaft, each of which was provided with weights which would close the doors unless they were held or propped open. A boy was stationed at the door to open it for workmen and see that it was closed.

On March 31, 1906, the elevators were in operation, the south elevator being loaded with barrels at the sixth floor while the north one was two floors below. The double doors on the sixth floor, one opposite the south elevator and the other opposite the north elevator, were both open, and a barrel weighing seventy pounds in some way rolled through the north door, striking against the side of the south elevator, and passed down the north side of the shaft, striking and injuring Enzenperger, who was in the act of placing a truck on the north elevator, then at the fourth floor. For the injuries thus sustained the plaintiff brought this action, alleging negligence in the company in failing properly to enclose and make secure the elevator as well as the elevator-shaft and in failing to furnish him with a reasonably safe place in which to work. The answer of the company, aside from a general denial, was an averment that the plaintiff's own negligence contributed to the injury, and that if the injury was the result of negligence it was that of the plaintiff's coemployees.

On the demurrer to the evidence the question is raised as to whether the case was tried upon the proper theory. It was presented to the jury upon the theory that the provision of the factory act applies which provides:

"Every person owning or operating any manufacturing establishment which may contain any elevator, hoisting-shaft or well-hole shall cause the same to be properly and substantially enclosed or secured, in order to protect the lives or limbs of those employed in such establishment." (Laws 1903, ch. 356, § 1.)

It is insisted that no reference was made in the petition to the statute, either by its title or the number of the section, and also that it contained no allegations which justified the plaintiff in claiming under the statute. There is little reason for this complaint. While the averments of the petition did not make specific reference to the statute, they clearly brought the case within the application of the provision quoted, which, as will be observed, does little more than enlarge the duties of the operator in caring for the lives and limbs of the employees and incidentally prescribes a rule of evidence to be applied in such cases. The petition set forth that defendant owns and operates a packing plant, and that it is a manufacturing establishment. The elevators were described, and it was alleged that there was no partition between them, no hoods over them, and no such guards or means provided as would protect employees from being injured by barrels or other articles falling from one elevator down into the space in which the other elevator was operated, and that the elevators were not enclosed and provided with tops, although it was necessary and practical to have it done. The petition disclosed that the defendant belongs in the class of operators on whom the statutory duties are imposed; that it failed in the performance of the duties; and that through its neglect the plaintiff suffered an injury. It thus appears that the petition contained all that plaintiff was required to prove in order to avail himself of the protection of the act and to make out a prima facie presumption of negligence. It is enough when he states in his petition the facts that he is bound to prove in order to make out his case, and since he is not required to prove the factory act, which is a public statute, it is unnecessary to make specific reference to it in his pleading. (Lore v. American Mfg. Co., 160 Mo. 608, 61 S.W. 678.)

It is contended that the testimony did not show culpable negligence on the part of the company. In this connection it is argued that the shaft in which both elevators were operated was enclosed so as to meet the requirements of the statute; that doors for entry into the elevators, which completed the enclosure, were provided, and men stationed at these doors to open and close them, and if there was neglect in leaving the north door open it was the neglect of the doorkeeper, a fellow servant of the plaintiff. If the enclosure of the shaft alone had been the measure of the company's duty in protecting the lives and limbs of its employees working on or about the elevators, it was not performed. The north door, which formed a part of the enclosure of the shaft, was not closed. The loading of the south elevator did not require the opening of the north door through which the barrel fell. That door was not only left open but it had been propped open. How long it had been open was not shown. Shortly before the accident an employee looked up and noticed that the door was standing open. The plaintiff attempted to show the length of time, but was unable to prove when and by whom it was opened, and the defendant, within whose reach the testimony was and who must have known the fact and could...