The Pittsburg Vitrified Paving & Building Brick Company v. Fisher

• Decision Date: 06 March 1909
• Docket Number: 15,689
• Court: Kansas Supreme Court
• Parties: THE PITTSBURG VITRIFIED PAVING & BUILDING BRICK COMPANY v. EDWIN FISHER, as Administrator, etc

100 P. 507

79 Kan. 576

THE PITTSBURG VITRIFIED PAVING & BUILDING BRICK COMPANY v. EDWIN FISHER, as Administrator, etc

No. 15,689

Supreme Court of Kansas

March 6, 1909

Decided January, 1909.

Error from Crawford district court; ARTHUR FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Injury to Employee--Unguarded Machinery--"Factory Act." Where four men are employed to work at a certain machine in a manufacturing establishment, one to take a turn at resting while the others work, a resting employee is engaged in the performance of duty the same as if he were occupied at the machine.

2. MASTER AND SERVANT--Servant within the Scope of His Employment. While resting an employee may not needlessly wander from the proper sphere of his work into other departments of the establishment and be within the scope of his employment; but if no resting-place be prescribed and no boundaries be fixed within which he must confine himself he may use his discretion in selecting a place to rest, and may with due circumspection, rightfully occupy any of the vacant places in the plant near his own machine and in touch with his work from which he is not expressly forbidden.

3. MASTER AND SERVANT--Same. In such a case the employer's duty to guard machinery according to the factory act (Laws 1903, ch. 356) extends to all places which employees might reasonably be expected to use in the performance of their duties, including the taking of turns at resting.

4. MASTER AND SERVANT--Same. In this case it is held to be a jury question whether a resting employee who was injured by an unguarded set-screw located twenty-five or thirty feet from his own machine was at an unauthorized place.

5. MASTER AND SERVANT--Contributory Negligence. An employee within the scope of his employment may assume that set-screws revolving so rapidly they are not visible have been guarded according to the provisions of the factory act and need not inspect machinery for them; and if he is injured by coming in contact with such a set-screw, of whose existence and danger he is ignorant, he is not guilty of contributory negligence.

6. DAMAGES--Pecuniary Expectancy of Parents from Continued Life of a Son. Under the facts of this case it is held that a father and mother had the right to expect to receive pecuniary benefits from the continued life of their son, and that sufficient data appeared from which the jury could compute the damages they sustained from his death.

A. J. Curran, and J. P. Curran, for plaintiff in error.

J. J. Campbell, J. M. Wayde, and C. O. Pingry, for defendant in error.

OPINION

BURCH, J.:

James Lareau was employed by the defendant to work in its brick plant. His clothing caught on a set-screw projecting from a revolving shaft in the plant and he was killed. The administrator of his estate sued the defendant and recovered damages for the benefit of the deceased's next of kin, his father and mother. The defendant prosecutes error.

At the time of the casualty Lareau's specific duties were those of an off-bearer from a repressing-machine. He removed pressed brick from a belt which carried them from the repressing-machine and placed them on a small car, or truck. Four men were employed as off-bearers, and it was the rule that one rested while the others worked. While sitting on an empty car at the repressing-machine, taking his turn at resting, Lareau was informed by an employee named Evans that Henry Cole, the machinery foreman of the plant, had said that a brick-making machine located twenty-five or thirty feet from the repressing-machine was cutting bolts, and that one of the boxes of it or near it was hot. Lareau started toward the scene of the trouble and was caught by the set-screw, a few feet away from the brick-machine.

The petition counted upon the provisions of the factory act (Laws 1903, ch. 356), sections 4 and 6 of which read as follow:

"Every person owning or operating any manufacturing establishment in which machinery is used shall furnish and supply for use therein belt-shifters, or other safe mechanical contrivance, for the purpose of throwing on or off belts or pulleys; and wherever it is practicable machinery shall be operated with loose pulleys. All vats, pans, saws, planers, cog gearing, belting, shafting, set-screws and machinery of every description used in a manufacturing establishment shall, where practicable, be properly and safely guarded, for the purpose of preventing or avoiding the death of or injury to the persons employed or laboring in any such establishment; and it is hereby made the duty of all persons owning or operating manufacturing establishments to provide and keep the same furnished with safeguards as herein specified."

"In all actions brought under and by virtue of the provisions of this act it shall be sufficient for the plaintiff to prove in the first instance, in order to establish the liability of the defendant, that the death or injury complained of resulted in consequence of the failure of the person owning or operating the manufacturing establishment where such death or injury occurred to provide said establishment with safeguards as required by this act, or that the failure to provide such safeguard directly contributed to such death or injury."

The evidence showed that it was practicable to guard the set-screw, so that negligence per se on the part of the defendant was established. But the defendant asserts that Lareau was not at a place in the brick plant where he had a right to be when he was injured, and hence that he had no right to the protection afforded by the factory act and a demurrer to the evidence ought to have been sustained.

The petition alleged, and there was evidence to show, that off-bearers were instructed to keep a lookout for things going wrong about the machinery and to report such matters to the foreman. They had general instructions to look after the interests of the company, and do whatever was needed to that end. If they saw anything that was undone, or boxing needing oil, or the like, they were supposed to attend to it. When breakdowns occurred they helped to make repairs, and Lareau himself had assisted in making repairs on such occasions. The petition alleged that Lareau saw a smoking box and went to it to ascertain its condition. The jury found specially that he was not examining the box when he was injured, and such is without doubt the only conclusion to be derived from the evidence. The plaintiff's evidence established that Cole was working at the brick-machine when Lareau approached, and the defendant argues from this fact there was no occasion for Lareau to inspect, report or repair. The plaintiff tries to show by the evidence that Lareau probably could not see Cole because of Cole's position at the brick-machine. The evidence is clear that nobody directed Lareau to go over toward the brick-machine, and the defendant asserts what probably is true [79 Kan. 580] --that the evidence does not show just what he was doing when he was hurt. The jury found that Lareau was in the line of his duty. Was there any evidence to go to the jury on this proposition?

It is plain that Lareau had no knowledge of trouble with the machinery about the brick-machine until Evans informed him. He acted because of the information Evans gave him and not from idle...