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instruction is, that it tells the jury that the plaintiff had a right to continue to use the engine for a reasonable time, regardless of whether using it was the incurring of such an imminent danger that an ordinarily prudent man would not encounter the same. The instruction was undoubtedly offered to meet the contention of the defendants that it was the duty of the plaintiff to stop working with the engine immediately on his discovery, before the accident, that the engine was not working just right. The evidence shows that the plaintiff did not actually know the spring was still defective until he crawled under the engine and listened to the working of the spring after the accident. There was no question of imminent danger until that time, which was after the accident happened. While the instruction was not altogether necessary, we do not think the jury were misled thereby. We also think these features of the case were fully covered by the ninth instruction given at the instance of the defendants, by which the jury were told that if they found, from the evidence, the engine was defective and the defendants promised to repair the same but such repairs were not made, and if they further found that the danger of continuing in the operation of said defective engine was so imminent that an ordinarily prudent person in like circumstances would not continue in operating the engine, then the plaintiff was guilty of negligence in continuing to use it and could not recover.
The twelfth instruction offered by the defendants was not based on or applicable to the evidence and was therefore properly refused.
Finding no substantial error in the record the judgment of the Appellate Court will be affirmed.
Henry O. FORREST, Defendant in Error, vs. The ROPER
FURNITURE COMPANY, Plaintiff in Error.
Opinion filed February 17, 1915-Rehearing denied April 8, 1915.
1. MASTER AND SERVANT—act to provide for safety of employees not limited to protection against contact with machinery. The act of 1909, to provide for the safety of employees in factories and mills, was not intended merely to prevent injury to employees by coming in contact with unguarded machinery, but to prevent injuries which might happen in other ways as the result of the machinery being unguarded.
2. SAME-circular rip-saw should be guarded so as to prevent throwing of splinters. Failure to provide a suitable guard for a power-driven circular rip-saw which will prevent injury to the operator from splinters thrown from the saw is a violation of the act of 1909, concerning the safety of employees in factories and mills, and an injury received by an employee by a splinter flying from such saw is within the contemplation of the act.
WRIT OF ERROR to the Appellate Court for the Second District;-heard in that court on appeal from the Circuit Court of Lee county; the Hon. Oscar E. HEARD, Judge, presiding
TRUSDELL, SMITH & LEECH, for plaintiff in error.
John E. Erwin, for defendant in error.
Mr. Justice Farmer delivered the opinion of the court :
This suit was brought by Henry O. Forrest, as plaintiff, against the Roper Furniture Company, a corporation, as defendant, to recover for an injury to his right eye, received while operating a circular rip-saw in the defendant's furniture factory, August 29, 1912. It was stipulated on the trial that James Roper, Harry Roper and Clyde Roper were the elective officers of the defendant corporation, and that both the plaintiff and defendant were, on the date of the alleged injury, within the provisions of the Workmen's Compensation act then in force, but the suit was based upon the act of 1909, entitled “An act to provide for the health, safety and comfort of employees in factories, mercantile establishments, mills and workshops in this State, and to provide for the enforcement thereof." The right to maintain the suit under that act is based upon the provision of section 3 of the 1911 Compensation act, “that when the injury to the employee was caused by the intentional omission of the employer to comply with statutory safety regulations, nothing in this act shall affect the civil liability of the employer. If the employer is a partnership, such omission must be that of one of the partners thereof, and if a corporation, that of any elective officer thereof."
Plaintiff's duty or work in defendant's furniture factory was to operate a circular rip-saw used in preparing material for the manufacture of furniture. While thus engaged the saw threw a sliver or splinter of considerable size, which struck him in the eye, causing the injury sued for. He recovered a judgment in the circuit court, which was affirmed by the Appellate Court for the Second District, and the case comes to this court upon a writ of certiorari.
No guard or other instrumentality was provided for the purpose of protecting the plaintiff from slivers or splinters, which the evidence shows are frequently thrown from such saws, and the suit is based upon the claim that the injury was caused by the intentional omission of the defendant to comply with the statutory safety regulations of the act of 1909. Section 1 of that act provides that all power-driven machinery, including all saws, planers, wood-shapers, jointers, and many other machines and appliances enumerated, “shall be so located wherever possible, as not to be dangerous to employees, 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 employee is obliged to pass, or to be employed shall, where practicable, be properly enclosed, fenced or otherwise guarded.” The section further provides that no machine in any such establishment shall be used when known to be dangerously defective. The contention of defendant going to the merits of the case is, that the statute does not require protection for a person using the saw against injury from splinters thrown from it, but the protection required by the statute is against injury from coming in contact with the saw. It is conceded all power-driven circular saws throw dust and splinters, but it is argued that as to such saws the statute is complied with if they are so protected by a fence or enclosure as to prevent employees being injured by coming in contact with them. As plaintiff was not injured by his person coming in contact with the saw but by a splinter thrown from it while using the same, it is claimed there can be no recovery.
One of the purposes of the act as expressed in its title is to provide for the safety of employees in factories, mills and other industries mentioned. To effectuate that purpose it is required, where possible, that the machines and appliances enumerated in section i be so located as not to be dangerous to employees, or be enclosed, fenced or otherwise protected. Said section i further provides that all dangerous places near which any employee is obliged to pass or be employed, “shall, where practicable, be properly enclosed, fenced or otherwise guarded.” It seems obvious that there would be much greater probability of an injury to an employee whose duty required him to work with the saw, from flying dust and splinters, than there would be to one who had nothing to do with the saw but whose duties required him to pass or work near it. The undisputed proof shows that unless prevented by a guard of some kind, saws of the character plaintiff was using throw dust, and not infrequently throw slivers or splinters toward the operator with great force. On one occasion before the injury to plaintiff's eye, while he was operating the saw, it threw a splinter with such force that it penetrated through his clothing and stuck in the flesh of his side until removed by a physician. At another time it threw a splinter, which missed him, with such force that it stuck in a board standing in the rear of plaintiff. Plaintiff testified, and this testimony was not disputed, that in other factories where he had worked with saws of the same kind, guards were used which prevented splinters or slivers from flying, and that such guards were in the market and practical.
It must be assumed the legislature was familiar with power-driven circular rip-saws, the method of operating them and the dangers attending their operation to the one directly using them. The requirement that the machines and appliances mentioned should, where possible, be so located as not to be dangerous to employees, or enclosed, fenced or otherwise protected, is a legislative declaration that they are hazardous machines, liable to cause injury to employees, which it was intended to prevent, as far as possible, by requiring them to be safeguarded. Three specific methods of accomplishing this object are mentioned: Location, enclosing and fencing; but as the object to be accomplished by the statute was the safety of employees, those methods were not made exclusive. If the employer could perform the duty required of him by the location of machinery or by enclosing or fencing it he was at liberty to do so, but if those methods were impracticable and he could guard his machinery from being dangerous to his employees by "otherwise" protecting it, he was required to do this. Not only that, but the statute requires the employer to enclose, fence or otherwise guard all dangerous places near which anyone is employed. The legislative concern was more for the protection of employees from injury by machinery than the particular manner by which that protection should be secured, and it would, we think, be contrary to the spirit and intent of the statute to say that because location, enclosing and fencing are mentioned as some of the methods which might be employed, the only danger to be guarded against is to so protect the machinery as to pre