Lang v. Kansas City Bolt & Nut Co.

BROADDUS, P. J. This is a suit to recover damages for an injury alleged to have been received, by reason of the. failure of the defendant to comply with section 6433, Revised Statutes 1899. The defendant is a corporation engaged in operating a manufacturing and mechanical business in Kansas City, Missouri. The plaintiff, a boy of about fourteen years of age, was at the time of the alleged injury in the defendant’s employ, and operating a machine called a pointer, which was [149] used to point iron bolts. This machine and eleven others were situated in a large room between seventy-five and one hundred feet square. They were placed in a row extending north and south about three feet from the east wall of the building, the machines, fronting west, and were placed so close together that a person could barely pass between them, and each sat on a table about five feet square. Extending across the back of each table were two bearings sixteen inches apart which supported three spindles, back of which Avas a gearing and shaft with two pulleys. The shaft had three pinions which drove the gearing which caused the machinery operating on the bolts to rotate and revolve. The operator of the machine stood in front. All the machinery was safely guarded except one from which the guarding had been removed a short time prior to the 17th day of April, 1908, for the purpose of repairing it. The repairs had been finished, but the guard had not been replaced at the time of plaintiff’s injury. While plaintiff was operating his machine the belt came off, of which fact he notified Mr. Steel, defendant’s general foreman, who directed bim to go to Mr. Sampson his immediate foreman, who directed him to go to a person called a belt lacer whose duty it was to look after the belting in the establishment, and keep them in running order. The plaintiff reported the matter to the belt lacer who put the belt on, at which time he Avas called elsewhere, whereupon, he gave to plaintiff a small can of belt oil and directed him to apply it to the belt, and then take the can to Sampson. After applying the oil, plaintiff took the can to Sampson who Avas setting dies on the threader from which the guards had been removed. The latter told plaintiff to put the can on the back part of the threader and pointed to the place where he wanted it put. There was a fiat iron surface running along on the back part of the [150] machine which was used for a place of deposit for tools, nuts and such like things, which was the place where Sampson had directed plaintiff to put the oil can. Plaintiff in order to get to the place to which, he was directed was compelled to pass between two of the machines on a plank over a trough containing a liquid used on the material being manufactured into bolts and other articles, and in doing, so he had to assume a stooping posture. It was shown that the space between the back of the machines and the wall was used only when it was necessary to repair the machinery or when it became necessary to put on or take off the belting. It was no part of the duty of plaintiff or others operating the machine to repair the machinery, there being a machinist for that purpose, and it was the duty of the belt lacer to look after the belting. It was shown that the guards that had been put on the machines had been placed upon them at a time when they were differently placed and were dangerous to the employees if left unguarded, but it is contended that since they occupied their new position with reference to the wall back of them as we have described and the space between the wall and the machines not being used by the operators as has been stated there was no real necessity for such guards. The statute reads as follows: “The belting, shafting, gearing and drums, in all manufacturing, mechanical and other establishments in this State, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments.” The object of the statute was not to require guards in all cases but only in such cases where the machinery would be dangerous to persons employed while engaged [151] in their ordinary duties. It is apparent that the machines as placed and guarded hy the wall in the rear could not have been in any sense dangerous to defendant’s employees operating the machines, that is, while in the performance of their ordinary duties. No one in the discharge of their ordinary duties were required to go into the space between the wall and the backs of the machines except the belt lacer and the machinist. And those persons by the nature of their employment, assumed all the risk incident to their employment, and so far as they were concerned it was immaterial whether they were or were not guarded. The operator who stood in front of his machine was in no danger from the belting, shafting, gearing and drums, several feet away on the back of the table before him, as he did not have to reach to or over them in the performance of his labor. In a recent case decided by the St. Louis Court of Appeals similar in principle it was held that the plaintiff was not entitled to recover, on the ground that the machinery was so placed that no danger to employees would be expected by a prudent man, and that, “if an appliance is so located that employees can not come in contact with it while running, without going out of their way, the statute does not require it to be guarded.” [Strode v. Columbia Box Co., 124 Mo. App. 511, 101 S. W. 1099.] And such is the holding in Meifert v. Sand Co., 101 S. W. 1103, 124 Mo. App. 491; Loehring v. Construction Co., 118 Mo. App. 163. But aside from what has already been said, admitting that the machinery was of such a character as to make it dangerous to the employees and such as the statute required to be guarded, the plaintiff would not be entitled to recover in this form of action, for the reason that he was not injured while engaged in the discharge of his ordinary duties. It was not a part of his duty to look after the oil can and so far as the evidence goes the occasion in question was the only time [152] he ever had anything to do with it whatever. In order to deliver the can he left his own machine where he was in safety because it was guarded and went to another that was unguarded and at the direction of his foreman attempted to put it in a place that was surrounded with danger. He was not in the discharge of his ordinary duty, or any duty that he had ever before performed. Although it may have been his duty to obey the direction of his foreman, it did not render defendant liable under the statute. The negligence, if any, consisted in the act of the foreman in directing him to perform a dangerous duty which was common law negligence. The cause is reversed. All concur.