Willadsen v. Blue Valley Creamery Co.

• Decision Date: 05 May 1919
• Docket Number: No. 12585.,12585.
• Citation: 214 S.W. 258,201 Mo. App. 527
• Parties: WILLADSEN v. BLUE VALLEY CREAMERY CO.
• Court: Missouri Court of Appeals

214 S.W. 258

201 Mo. App. 527

WILLADSEN v. BLUE VALLEY CREAMERY CO.

No. 12585.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court. Buchanan County; Charles H. Mayer, Judge.

Action by Carl Willadsen against the Blue Valley Creamery Company. At the close of all the evidence the court sustained a demurrer to the evidence, and plaintiff appeals. Reversed and remanded.

W. W. Watkins, Graham & Silverman, and C. F. Strop, all of St. Joseph, for appellant.

Culver & Phillip, of St. Joseph, for respondent.

BLAND, J.

This is a suit for personal injuries brought under the Factory Act (section 7828, R. S. 1909). At the close of all the evidence the court sustained a demurrer to the evidence, and plaintiff has applied.

The facts show that plaintiff, a man 44 years of age, was injured by his hand coming in contact with the blades of a fan, resulting in the loss of all the fingers of his left hand except the little finger. The circumstances of the accident are as follows: Defendant, plaintiff's employer, operated a creamery and butter factory in St. Joseph, Mo., in which plaintiff worked. It was plaintiff's principal duty to make the "starter," which was a culture to sour milk. In the room where plaintiff was working there was a window composed of two sashes in each of which were four 14×20 inch panes; immediately in front of the upper sash of this window was the fan in question. The purpose of the fan was to draw vapor and impure air from the room. In making the "starter" plaintiff worked upon a table that stood partly on the sill of this window. After plaintiff had made the "starter," if he had any spare time, it was his duty to help put the cream in the vats and in the churns. Defendant's foreman testified that it was the duty of a number of men in the plant to see that the window was kept in proper position as to being open or closed, and that this was one of plaintiff's duties. Ordinarily when the fan was in operation the upper sash of the window was open, and when the fan was not revolving the window was ordinarily closed.

At the time plaintiff was injured the fan was in operation and the upper sash open. Plaintiff, noticing that a number of flies were coming into the room through the open window, proceeded to close the same in the following manner He got up on the table on his knees, reached either with his left hand or with both hands to the middle frame of the upper sash and closed the window; he then put his right hand to his right side on the table and started to get down therefrom, bringing his left hand back from the position it was in on the window, and in some manner got his hand into the blades of the fan, resulting in the injury described.

The table upon which plaintiff knelt was 30 inches in height, the window was in a recess 7 inches deep, and the table extended into this recess and 17½ inches further out into the room, making the table 24½ inches in width. The length of the table was 36 inches, the width of the window. Sunk in the upper part of the window space was the revolving fan. In operation this fan attained a speed of 500 to 600 revolutions per minute. The blades of the fan were inclosed in an iron frame or rim. This rim, which was 3 inches in width, stood on a board 2 inches thick. The distance from the window sash to the face of the iron frame was 13½ inches. This fan was 38 inches in diameter; the blades thereof were 16 inches long; the latter being attached to the hub in the center and were bowed toward the face of the fan and then back, so that the blades at their ends were 3 or 4 inches back from the face of the iron rim. Four and three-fourths inches above the rim the blades extended into the room beyond the face of the fan 1 inch. This was the nearest point of the fan to the floor of the room, where the blades extended to and beyond the face of the fan. Measured perpendicularly, the bottom of the fan was 6 feet and 9 inches from the floor; the distance from the floor to the nearest point that a person could reach the blades, measured perpendicularly, was 6 feet 11¾ inches. The distance from the top of the table to the board upon which the rim of the fan rested was 48 inches; the distance from the latter point to the place where the blades of the fan extended out 1 inch was 9¾ inches; the distance from the rim of the fan to the points of the blades was 3 or 4 inches; the rim was half an inch thick.

Defendant contends, first, that it was not required to guard the fan because it was not so placed as to be dangerous to the plaintiff while engaged in his ordinary duties; second, that plaintiff was not injured while in the performance of his ordinary duties; and, third, that he was guilty of contributory negligence.

The Factory Act (section 7828, R. S. 1909) provides that machines situated in factories in this state shall be guarded "when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties." Whether there is any causal connection between the failure to guard and the injury is usually a question for the jury. Austin v. Shoe Co., 176 Mo. App. 546, loc. cit. 572, 158 S. W. 709; Lohmeyer v. St. Louis Cordage Co., 137 Mo. App. 624, 119 S. W. 49; Henderson v. Kansas City, 177 Mo. 477, loc. cit. 493, 76 S. W. 1045; Shaw v. Kansas City (Sup.) 196 S. W. 1091. But when the evidence has no tendency to prove that a man of ordinary care would have foreseen the danger present by reason of the machine being unguarded, the question becomes one of law. Meifert v. Sand Co., 124 Mo. App. 491, loc. cit. 495, 101 S. W. 1103; Strode v. Columbia Box Co., 124 Mo. App. 511, 101 S. W. 1099; Lang v. Bolt & Nut Co., 131 Mo. App. 146, 110 S. W. 614; of the statute under consideration, it was said by the Supreme Court in the case of Cole v. North Amer. Lead Co., 240 Mo. 397, loc. cit. 407, 408, 144 S. W. 855, 857:

"In our judgment this is one of the wisest and most humane statutes to be found upon our statute books, and should be given a broad and liberal interpretation, because it is remedial and highly salutary, intended to protect the employés from just such injuries as the one sustained by plaintiff in this case. The Legislature knew that the human mind and conduct was such that a servant when in the performance of his duties to his master, surrounded by dangerous machinery, in motion, with his mind concentrated upon his work, oblivious to his surroundings, is liable to slip or take a misstep and fall into the revolving machinery, or thoughtlessly thrust his hand or other portion of his body into the gearing or other portion of the machinery, and if not 'safely and securely guarded,' he would in consequence thereof receive injuries of a serious character. It was the intention of the Legislature and the object and purpose of the statute to put a stop to all such injuries which grow out of such inattention, inadvertence, mishaps, or accidents, that is, such acts of omission.

"This is clearly manifested and emphasized by the last clause of this section of the statute. The Legislature was so solicitous of those matters and of the safety of the employés of such institutions that it required, by this last clause, that when it was impossible for the master to safely and securely guard the machinery mentioned, notice of such dangers should be conspicuously posted in such establishments; evidently for the purpose of continuously and potently calling their attention to the dangers surrounding them, and thereby make them more watchful of the machinery and careful in their actions and motions about it."

A review of the purposes of this statute was had in the following cases, and the reasoning of Woodson, J., in the case last cited was fully sustained and amplified in Austin v. Shoe Co., supra, 176 Mo. App. loc. cit. 563, 564, 565, 158 S. W. 709; Simpson v. Iron Works Co., 249 Mo. 376, loc. cit. 389-390, 155 S. W 810; Turner v. Tyler Land & Timber Co., 188 Mo. App. 481, loc. cit. 492, 174 S. W. 184. It was stated in Yates v. House Wrecking Co., 195 S. W. 548, loc. cit. 551:

"The question, primarily, is not at what particular place is the machinery located, but rather is, where is it located with reference to the servant's ordinary duties. If, in the performance of such duties, he must go or reach in dangerous proximity to the machinery, it should be `securely guarded when possible.'"

See, also, Lohmeyer v. Cordage Co., supra, 137 Mo. App. loc. cit. 630, 119 S. W. 49.

In urging as a matter of law that this fan was one not required to be guarded, defendant calls our attention to the fact that the fan was sunk in the wall near the top of the ceiling at such a distance from the floor that no ordinary man, standing on the floor, would come in contact with it; that defendant claims that plaintiff's ordinary duties were to put cultures in little glass jars on the table in front of the window, and when he had spare time to help on the vats and churns, and that these duties did not take him near the fan; that he only opened and closed the windows occasionally; that there was evidence that one could stand on the floor and open and close the windows with one finger, the windows moving very easily; that on account of the fact that plaintiff was 5 feet 3 inches in height it was impossible for him to have gotten his hand into the fan kneeling in the way plaintiff claims he knelt when he was injured; and that plaintiff's hand could not have been sucked into the fan. Plaintiff testified that his hand got into the fan in that manner.

The evidence shows that while plaintiff's duties required him to devote most of his time in making cultures or the "starter," a portion of his time was devoted to putting cream in the vats and churns, and it was also 'a part of his duties to attend to the raising and closing of the windows. While plaintiff may have devoted but little of his time to the matter of attending to the windows and nearly all of his...