Cincinnati, Hamilton & Dayton Railway Co. v. Armuth

Myers, J. Action by appellee against appellant for personal injuries while working in appellant’s machine shop in Indiana. Complaint in one paragraph and answer in general denial. The errors assigned are predicated on error in overruling appellant’s motion for judgment non obstante, and in overruling its motion for a new trial. Appellee’s injury was occasioned by his hand slipping from a lever ■with which the motion of a drill was controlled, into an alleged unguarded iron gearing which it is alleged could have been guarded at small cost without impairing its practical usefulness. The jury found in answer to interrogatories that the accident and injury to appellee was caused by his hand slipping from the handle of the lever while [676] lie was undertaking to operate it, into the cogs, a distance of about eight inches from the handle of the lever; that the cogs were not covered in any way, and that there was no evidence as to whether appellee took a firm hold of the handle, or whether if he had it would have slipped off, or as to the pressure required to work the lever, except that it would move with a pressure about equal to that of a man’s hand, and that there was no evidence that it required five pounds pressure to move it; that the limit of movement of the lever was about five and one-half inches from a perpendicular, to the left, away from the cogs, and back to the right to a perpendicular, and it moved easily; that the cogs meshed together about twelve inches from the' floor, and the lever was about fourteen and one-half inches long, with a handle at the top, and he operated it about six times a day. Appellee had worked at the machine continuously from April 1, to July 7,1910, the date of his injury. There were eight cogwheels of different diameters, four on the lower shaft meshing into four on the upper shaft, but on four different alignments, owing to the differing diameters of the wheels above and below the cogs which meshed together. Appellee lost the third and fourth fingers, by the accident. It is appellant’s contention that it was not the unguarded condition of the cogs, as shown by the findings, but the slipping of appellee’s hand, which constituted the proximate cause of the injury, and that he was culpably negligent in allowing his hand to slip into the cogs. Eeliance is placed by appellant on Hattaway v. Atlanta Steel, etc., Co. (1900), 155 Ind. 507, 58 N. E. 718; P. H. & F. M. Roots Co. v. Meeker (1905), 165 Ind. 132, 73 N. E. 253, and Crawford & McCrimmon Co. v. Gose (1909); 172 Ind. 81, 87 N. E. 711. It is to be said as to the first of these cases, that it arose prior to the enactment of the factory safety act. The two latter cases were expressly overruled on the point under consideration in King v. Inland Steel Co. (1912), 177 Ind. [677] 201, 96 N. E. 377, 97 N. E. 529. See, also, Inland Steel Co. v. Ilko (1914), 181 Ind. —, 103 N. E. 7. 1. [678] 2. [677] The opinion in the Meeker ease was written by Mr. Justice Hadley, who also wrote the opinion in United States Cement Co. v. Cooper (1909), 172 Ind. 599, 88 N. E. 69. In that ease the accident occurred by Cooper stumbling and throwing his foot in the conveyor. "When the Cose ease was decided, the writer of this opinion had not had occasion to examine the Meeker and Sullender cases, but when the Cooper case came on, he took strong ground as to the doctrine of those cases, and the application of the ejusdem generis rule in Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, 75 N. E. 270. The result was a different view by the court, in the Cooper case, and conformity of that decision with Bessler v. Laughlin (1907), 168 Ind. 38, 79 N. E. 1033, as distinguished from the Meeker and Cose cases, and I am still persuaded with the better reason. In the late ease of Balzer v. Waring (1911), 176 Ind. 585, 95 N. E. 257, the facts gave rise to something other than the unguarded machinery as the proximate cause of injury, and were stronger than in the case at bar, but this court there said “Proximate cause is the act that immediately causes, or fails to prevent, an injury that might reasonably have been anticipated would result from the negligent act or omission charged, and without which such injury would not have occurred. The test is to be found in the probably injurious consequences that were to be anticipated, and not in the number of subsequent events or agencies that might arise to bring about such consequences.” See cases there cited. To the same effect are Cleveland, etc., R. Co. v. Powers (1909), 173 Ind. 105, 118, 88 N. E. 1073, 89 N. E. 485; Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 73 N. E. 899; Indianapolis St. R. Co. v. Schmidt (1904), 163 Ind. 360, 71 N. E. 201; Evansville Hoop, etc., Co. v. Bailey (1909), 43 Ind. App. 153, 84 N. E. 549; Tucker & Dorsey Mfg. Co. v. Staley (1907), [678] 40 Ind. App. 63, 80 N. E. 975; Van De Bogart v. Marinette, etc., Paper Co. (1907), 132 Wis. 367, 112 N. W. 443; Hartman v. Berlin & Jones Envelope Co. (1911), 127 N. Y. Supp. 187, 71 Misc. 30. The particular or actual consequences need not be anticipated. Davis v. Mercer Lumber Co., supra; Fine v. Interurban St. R. Co. (1904), 91 N. Y. Supp. 43, 45 Misc. 587. That the accident could not have happened without the offending cause is sufficient to constitute it the proximate cause. Tucker & Dorsey Mfg. Co. v. Staley, supra; Laidlaw v. Sage (1899), 158 N. Y. 73, 52 N. E. 679, 44 L. R. A. 216. 3. 4. [680] 5. [678] The statute is remedial, and should at least receive such construction as the reasonable intendment of its enactment discloses. As to certain designated machinery, it puts beyond inquiry by courts or juries, as to whether it should be guarded, the one condition only being whether this can be done without affecting the practical utility of the machinery. When its purposes are considered, can it make any difference how the injury arises, as to the proximate cause, if it could not have occurred if the machine had been guarded, and if so, is it not necessarily the efficient, producing cause where there is no intervening independent cause? This leads to the inquiry whether the slipping of appellee's hand from the lever was an independent cause, or a concurring cause, between which, and contact with the cogs, there was an immediate unbroken connection; and whether it needed to have been reasonably anticipated that such result might occur as did occur? Is it not the very object of the statute. to guard against injuries which the legislature has determined by the act itself are likely to oecur by the operation of the designated machinery or appliances ? That there was no intervening responsible agency is apparent, unless it can be said that the hand slipping was that agency. If the hand had not slipped the injury would not have occurred. If the cogs had been guarded it would not have occurred, [679] they therefore were concurring causes. This being true what is the legal sequence. Cases in other jurisdictions under different statutes mark the difference between statutes which are mandatory, and such as leave it a question of fact whether the particular appliance is dangerous, or it ought to be reasonably apprehended to be dangerous; whether it should be guarded, or is properly done, and whether the failure is the proximate cause of the injury. Such cases are, Koutsky v. Forster-Whitman Lumber Co. (1911), 146 Wis. 425, 131 N. W. 1001; Miller v. Kimberly & Clark Co. (1908), 137 Wis. 138, 118 N. W. 536; Hartman v. Berlin & Jones Envelope Co., supra; Callopy v. Atwood (1908), 105 Minn. 80, 117 N. W. 238, 18 L. R. A. (N. S.) 593; McGinnis v. Rigby Printing Co. (1906), 122 Mo. App. 227, 99 S. W. 4; Glens Falls, etc., Co. v. Travelers’ Ins. Co. (1900), 162 N. Y. 399, 56 N. E. 897. Under our statute and cases, it has been held that the duty to guard specified machinery is mandatory, and the failure to guard is negligence per se. ■ It has been held that slipping and falling, by reason of which injury arises from appliances required to be guarded, is not a proximate cause, and that the absence of the guard is the proximate cause, irrespective of the agency which produces the injury, so long as it is reasonably to be antieipateed as a result likely to ensue as a natural result of the neglect or omission charged. Evansville Hoop, etc., Co. v. Bailey, supra; Hartman v. Berlin & Jones Envelope Co., supra; Martin v. Walker & Williams Mfg. Co. (1910), 198 N. Y. 324, 91 N. E. 798; Rosenbaum v. Shoffner (1897), 98 Tenn. 624, 40 S. W. 1086; Shields v. Murdoch & Cameron (1893), 20 Sc. Ses. Cas. (4th Ser.) 727. It has been held in Minnesota, Christianson v. Northwestern, etc., Co. (1901), 83 Minn. 25, 85 N. W. 826, 85 Am. St. 440, under a statute requiring the guarding of specific machinery, that liability arises from the failure and injury, even though the injury could not be reasonably anticipated. It is also held that similar statutes are in [680] tended to embrace and cover injuries arising- from the ordinary duties of the particular employment, and also occasional and exceptional duties in the course of the ordinary duties of the employment. Koutsky v. Forster-Whitman Lumber Co., supra; Caspar v. Lewin (1910), 82 Kan. 604, 109 Pac. 657; Pittsburgh, etc., Brick Co. v. Fisher (1909), 79 Kan. 576, 100 Pac. 507; Callopy v. Atwood, supra; Cook v. Danahar Lumber Co. (1910), 61 Wash. 118, 112 Pac. 245; Walker v. Newton Falls Paper Co. (1904), 90 N. Y. Supp. 530, 99 App. Div. 47; Hurley v. Atlantic, etc., Co. (1910), 122 N. Y. Supp. 701, 138 App. Div. 642; Hartman v. Berlin & Jones Envelope Co., supra. If every act concurring with the failure to guard, resulting in an injury, there being no intermediate responsible agency, should be regarded as the proximate cause, the statute would be practically nullified. It is not the primary cause, but the producing cause, the cause but for which the injury could not have occurred that is the proximate cause. Proximate cause and primary cause are not synonymous, in the law of negligence. Primary action from which injury results, necessarily precedes in point of time, the injury itself, with respect to unguarded machinery, but it may not be in law the proximate cause of the injury, for the reason that the thing, or condition, but for which the injury could not have occurred, is deemed in law the proximate cause, as concurring with the primary act (if it is without fault) and as it necessarily exists at such time, they are concurring conditions, and the negligent act relates back to the primary act providing the sequence is unbroken, or there is no independent agency as the moving cause, and- the responsible cause is the proximate cause, without reference to whether it is the first, or last, or intermediate in the chain of causation. Lake Erie, etc., R. Co. v. Chairman (1903), 161 Ind. 95, 67 N. E. 923; Cincinnati, etc., R. Co. v. Acrea (1908), 42 Ind. App. 127, 82 N. E. 1009; Merrill v. Los Angeles Gas, etc., Co. (1910), 158 Cal. 499, [681] 111 Pac. 534, 31 L. R. A. (N. S.) 559, 139 Am. St. 134; Travelers Ins. Co. v. Melick (1894), 65 Fed. 178, 184, 12 C. C. A. 544, 27 L. R. A. 629; Pielke v. Chicago, etc., R. Co. (1889), 5 Dak. 444, 41 N. W. 669; Kelsey; v. Chicago, etc., R. Co. (1890), 1 S. Dak. 80, 45 N. W. 204; East Tennessee, etc., R. Co. v. Kelly (1892), 91 Tenn. 699, 20 S. W. 312, 17 L. R. A. 691 and note, 30 Am. St. 902 and note; Troy v. Cape Fear, etc., R. Co. (1888), 99 N. C. 298, 6 S. E. 77, 6 Am. St. 521 and note. 6. We think the unguarded cogs must be regarded as the proximate cause of the injury and not the slipping of appellee’s hand, and that contributory negligence is not shown as a matter of law by a finding that the hand slipped from the lever and was caught in the cogs,- but that the latter question is one for the jury, and the finding by the general verdict is in favor of appellee on that question. If this were not the correct rule, it would be difficult to perceive what object the statute could have had if it were not to guard against such accidents as the one described here. It is alleged in the complaint that the hand could not, and would not have been caught had the machine, cogs, etc., been properly guarded and protected. Resolved to its simplest statement, it is, that if the hand had not slipped, or the cogs had been guarded, the accident woold not have occurred, with the failure to guard negligence per se, and the burden of the claim of negligence of appellee is on appellant, and that question is one for the jury. Balzer v. Waring, supra. 7. [683] 8. [681] The sole allegation of the complaint upon the subject of the character of his injuries and damages, is, that his hand was “torn, and lacerated in such manner as to destroy the usefulness thereof, and to necessitate the amputation of the third and fourth fingers, and to render him a cripple for life, to his damage in the sum of fifteen thousand dollars. ” There is evidence that the cogs 'did not always catch and mesh promptly, and on the oeea [682] sion of the injury, and while trying to reverse the lever under these conditions, the hand of appellee slipped from the lever into the cogs. There is evidence that appellee was tafeen to his doctor, and to the hospital, and his fingers were amputated; but no evidence that he incurred any expense for physicians or hospital services of any feind; and the only evidence as to the question of loss of time is that he had not been able to “work a machine” since his fingers were taken off; that he had worked from April 1, until July in the boring mill, and his wages were eighteen and one-half cents an hour at that work, and he was twenty-six years of age. Before this employment he had been engaged in farming, and at work in furniture factories and places where there was no machinery; since the injury he had tried to do a little carpenter work, but could not use a hammer well enough to hold a job. The court instructed the jury, by charge No. 16, in part as follows, upon the subject of damages. “You may take into consideration the effect, if any, of any such injuries upon his ability to pursue his usual business in the future, only as shown by the evidence. The expense,.if any, necessarily contracted, or incurred, in the treatment of any such injuries, and loss of time, if any, resulting as a direct effect of any such injuries. And from the consideration of the elements herein enumerated, only as shown by the evidence, you may assess his recovery at such amount as will compensate him,” etc. Appellant attacks this instruction as erroneous, and harmful, as covering elements neither alleged in the complaint, nor shown in evidence, both as to loss of time, and expense incurred, under the rule in Cleveland, etc., R. Co. v. Case (1910), 174 Ind. 369, 376, 91 N. E. 238, and cases cited. Appellee concedes that loss of time is not directly shown, and asserts that the fact of treatment was inferable from the character of the injuries, and asserts that he made no claim for loss of time or expense, and the recovery, $1,500, is not such as to indicate any injury to appellant from the [683] instruction, and admits that there is no evidence of loss of túne, or expense incurred, hence he argues that the instruction is so qualified, in its restriction to the evidence on the subjects, that as there was no evidence, the jury could not have been misled. There was no objection to the evidence which we have set out, so that the .case does not fall Avithin the rule of Union Traction Co. v. Sullivan (1906), 38 Ind. App. 513, 76 N. E. 116, or the case of American Car, etc., Co. v. Clark (1904), 32 Ind. App. 644, 70 N. E. 829, where there was an instruction in peremptory phrase that "you will take into consideration * * * expenses incurred for services of a physician * * # and nursing and medicine," where there was no evidence of either. The instruction in the Case ease in one respect Avas the same as here, viz., that "you may take into consideration the loss of time, if any," occasioned by the injury, but in that ease, there Avas no allegation, and no evidence of loss of time, and the instruction Avas held Avithout the issues and the evidence. Here, there is an allegation that the usefulness of the hand was destroyed, and he was rendered a cripple for life, but no proof of the time lost, and no basis upon Avhich to assess special damages for loss of time. The general result of the injury is included in the general allegation, and the complaint was doubtless broad enough under the rule in Indiana Car Co. v. Parker (1884), 100 Ind. 181; and Pittsburgh, etc., R. Co. v. Lynch (1909), 43 Ind. App. 177, 87 N. E. 40, and cases there cited, to authorize the proof of loss of time, and expense of treatment, Avhere the evidence of such loss or expense is admitted without exception, and the complaint should then be deemed amended, and if the rule is any broader than as thus qualified, those cases may Avell be doubted in that particular. [684] 7. [683] The phrase, "if any," and "only as shown by the evidence," as applied to the question of treatment, cannot be referable to lack of evidence as to an obligation therefor [684] “contracted or incurred,” for there is evidence that an implied liability was incurred from the rendition and acceptance of services. In other words, to say that damages may be assessed for certain named expenses, not alleged in the complaint, if the evidence shows them to have been “contracted or incurred,” and the evidence shows that they were incurred, but their amount or value is not shown, is to authorize the jury to consider them, unless it can be said that if there is no evidence of their value, there is no basis for their consideration, and the instruction is therefore harmless. That the jury had no right to consider loss of time, or expenses “contracted or incurred” for treatment under the evidence is conceded, but how is the court to Imow under this instruction, that they were not. The jury could infer as a fact, that there had been some loss of time, for it affirmatively appears that appellee had tried at least one kind of work, and could not keep a place, and also presumptively, that he had incurred some liability for treatment. There being such evidence as to raise the implication of liability for physician and hospital services, and no evidence as to their value, the instruction that the jury may take into consideration “the expense if any, necessarily contracted, or incurred, in the treatment of any such injuries * * * and from the consideration of these elements only as shown by the evidence,” leaves the jury to consider the question with no basis for fixing the damages. The jury would naturally understand under the evidence as it stands, that appellee was liable for these services; certainly they would not naturally understand the negative, that he was not liable for them. We cannot say that this improper and speculative element did not enter into the verdict, and the instruction is therefore presumptively harmful. American Car, etc., Co. v. Clark, supra; Cleveland, etc., R. Co. v. Case, supra; Miller v. State (1910), 174 Ind. 255, 91 N. E. 930; Timmons v. Kenrick (1913), 53 Ind. [685] App. 490, 102 N. E. 52; Neeley v. Louisville, etc., Traction Co. (1913), 53 Ind. App. 659, 102 N. E. 455. 9. On the trial, appellee over objection was permitted to show that guards were placed over the cogs after the accident for the declared purpose of showing that they could be guarded without impairing the efficiency of the machine, and the jury was instructed that the testimony was only admitted for that purpose, “and you shall not take it or consider it in any other light. It is no evidence or any admission of any negligence on the part of the defendant.” There was no opinion evidence of the practicability of guarding the cogs, but there was before the jury in addition to a minute oral description of the machine and its operation, and the cogs and their operation, an accurate drawing of the machinery, with accurate measurements shown of distances, sizes of parts, their relation to and distance from each other, and from the point of handhold on the lever. From such evidence the jury was as well qualified to form an opinion as to the practicability of guarding the cogs as witnesses could be. Inland Steel Co. v. Ilko, supra. A direct interrogátory, as to practicability, would be asking the witness as to the ultimate question in issue, and doubtless in itself improper. Beery v. Driver (1906), 167 Ind. 127, 76 N. E. 967; American Tel., etc., Co. v. Green (1905), 164 Ind. 349, 73 N. E. 707; Johnson v. Anderson (1896), 143 Ind. 493, 42 N. E. 815; Brunker v. Cummins (1892), 133 Ind. 443, 32 N. E. 732; Elkhart, etc., R. Co. v. Waldorf (1897), 17 Ind. App. 29, 46 N. E. 88; 17 Cyc. 40. The instruction that the evidence should be considered for one purpose only, was as mandatory as it could be, followed by the declaration that it was no evidence, or admission of any negligence on the part of appellant. True, if it was not admissible for any purpose, its admission would constitute reversible, if harmful error, but it must be borne • [686] in mind that the failure to guard the specific machinery designated by the statute was negligence per se, and the evidence shows that it was unguarded. If a defense had been interposed that it was impracticable to guard, and there had been any conflict in the evidence however slight, so that the fact of subsequent guarding might have turned the scale, the admission would be presumptively harmful, but there is no conflict on the question, hence in the absence of any claim of impracticability to guard, with no conflict in the evidence, with the situation and drawing of the machine, which was simple in its mechanism and operation, before the jury, the fact of practicability to guard was so patent that evidence of subsequent guarding was harmless. These are the views of a majority of the court on the question. The writer is of the opinion that its admission was a prejudical error, notwithstanding the court’s direction. Whether the cogs could be guarded without impairing the usefulness of the machine was a material issue in the cause, and while there is authority for the admission in other jurisdictions, the rule is not so in this State. Sievers v. Peters, etc., Lumber Co. (1898), 151 Ind. 642, 50 N. E. 877, 52 N. E. 399; Board, etc. v. Pearson (1891), 129 Ind. 456, 28 N. E. 1120; Terre Haute, etc., R. Co. v. Clem (1889), 123 Ind. 15, 23 N. E. 965, 7 L. R. A. 588, 18 Am. St. 303; Columbia, etc., R. Co. v. Hawthorne (1892), 144 U. S. 202, 12 Sup. Ct. 591, 36 L. Ed. 405. The fact that a guard was put on after the accident, and that the efficiency of the machine was not thereby impaired, could not enlarge the previous duty if it existed, but the guards may have been put on without regard to the question whether the efficiency of the machine was materially impaired, to protect against future accidents such as is here presented, and irrespective of the statutory duty in this particular case, or beyond that duty, and such precaution ought not be construed as an admission of prior duty, and its admission is calculated to prejudice the jury. Note.. — Reported in 103 N. E. 738. See, also, under (1) 29 Oyc. 493; (2) 29 Cyc. 495; (3) 26 Cyc. 1134; (4) 26 Cyc. 1092; (5) 29 Cyc. 489; (6) 26 Cyc. 14S2; (7) 13 Cyc. 237, 238; (8) 3 Cyc. 292, 444; (9) 26 Cyc. 1428; 38 Cyc. 1411, 1446. As to the doctrine of proximate cause, see 36 Am. St. 807. For the error in. giving instruction No. 16, a new trial must be granted, and it is so ordered. Cox, J., does not agree that the giving of instruction No. 16 is sufficient cause for reversing the judgment.