Drake v. Industrial Works

Bird, J. The defendant is a manufacturer of locomotive cranes in Bay City, and on the 26th day of July, 1909, the plaintiff was in its employ, working as a chipper. His work was that of smoothing up the rough castings with a chisel. While grinding one of his chisels on an emery wheel, a particle of dust or steel was thrown off and into his left eye, resulting in a permanent injury. The negligence counted upon by the plaintiff was the failure of the defendant to provide and equip the emery wheel with a fan or blower to carry away the dust or particles which might be thrown therefrom, in compliance with Act No. 285 of the Public Acts of 1909. When the testimony was completed, the trial court was of the opinion that solid emery wheels, such as the one in question, did not come within the provisions of the act, and therefore directed the jury to return a verdict for the defendant. This action upon the part of the trial court is alleged as error by the plaintiff. The legislation involved in this case first made its appearance in the legislative session of 1887, under the title “ An act to provide for blowers in establishments where emery wheels or emery belts are used.” Section 1 provided, in part, as follows: “Section 1. That all factories and workshops where emery wheels or emery belts, of any description, are used, either solid emery, leather, leather-covered, felt, canvas, paper, or wheels rolled in emery or corundum, — 624 — shall be provided with blowers,” etc. Act No. 136, Pub. Aets 1887. Section 1 was amended in 1893, under the same title, to read: “ Section 1. That all persons, companies, or corporations operating any factory or workshop, where emery wheels or emery belts of any description are used, either solid .emery, leather, leather covered, felt, canvas, linen, paper, cotton, or wheels or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with blowers,” etc. Act No. Ill, Pub. Acts 1893. Both the title and section 1 were re-enacted in 1899 in the following form: “ An act to provide fans or blowers in all workshops or establishments where wheels composed partly of emery or buffing wheels or emery belts are used. “Section 1. That all persons, companies or corporations, operating any factory or workshop, where wheels or emery belts of any description are in general use, either leather, leathei-covered, felt, canvas, paper, cotton, or wheels or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with fans or blowers, or similar apparatus, when ordered by the commissioner of labor, which shall be placed in such a position or manner as to protect the person or persons using the same from the particles of dust produced and caused thereby, and to carry away the dust arising from, or thrown off by, such wheels or belts, while in operation, directly to the outside of the building or to some other receptacle placed so as to receive and confine such dust, and the same shall be placed in such factory or workshop within three months after this act shall take effect, in the manner and according to the directions and specifications as herein, in this act set forth: Provided, that grinding machines upon which water is used at the point of grinding contact shall be exempt from the conditions of this act: And provided further, that this act shall not apply to solid emery wheels used in saw-mills or planing-mills or other wood-working establishments.” Act No. 202, Pub. Acts 1899. In 1909 the labor laws of the State were consolidated, — 625 — and the foregoing section, with others of the 1899 law, were included therein, without material change. Act No. 285, Pub. Acts 1909. See 2 How. Stat. [2d Ed.] § 4035. It is contended by the defendant that the omission of the word “emery” before the word “wheel” and the omission of the words “solid emery” after the word “ either,” in the act of 1899 were made for the deliberate purpose of eliminating solid emery wheels from the provisions of the act. In construing the act the purpose of it may be considered. The idea behind the legislation was the protection, external as well as internal, of the employe, from the injurious effects of the dust thrown from such apparatus, as is mentioned in the statute. If this be the reason for it, no good reason suggests itself why solid emery wheels should be exempted from the act, as the dust therefrom is quite as injurious as that thrown from the other apparatus specifically enumerated. Another fact which makes against the defendant’s construction is the last proviso of section 1, which was added by the legislature of 1899, the one which, it is claimed, purposely omitted “emery wheels” from the act. This proviso reads— “That this act shall not apply to solid emery wheels used in sawmills or planing-mills, or other wood-working establishments. ” If the legislature of 1899 intended to eliminate “emery wheels” from the provisions of the act, it is extremely difficult to explain why it inserted this proviso. The proviso can be accounted for only on the theory that the legislature supposed solid emery wheels were included within the general words of the act. The question as to whether the phrase “of any description ” refers to emery belts alone, or to both wheels and emery belts, is one which is not altogether clear. If the general rule were followed, it would modify emery belts — 626 — only. Sutherland, in his work on Statutory Construction, lays down the rule in such cases as follows: “ Relative and qualifying words and phrases, grammatically and legally, where no contrary intention appears, refer solely to the last antecedent.” Section 420. We are of the opinion that a contrary intention does appear in this act, when its history, purpose, and context are considered, and that the phrase “of any description” refers to wheels as well as to emery belts. In view of these conclusions, we think the act should be construed so as to include solid emery wheels within its provisions. The trial court was requested to direct a verdict for the defendant for other reasons than the one we have been considering, and, among them, the question of the contributory negligence of the plaintiff is raised. It is said that he should have worn goggles while grinding the chisels; that a sign posted in the shop informed the employes where the goggles could be obtained. The plaintiff’s testimony shows that he never saw the sign; that other employés did not wear them when grinding chisels; and that when he was instructed by the foreman how to do the work nothing was said by him about goggles. It further appeared that the sign was dust-covered to the extent that it was difficult to read. This showing by plaintiff, together with the fact that he had been employed at this work only a few days, made the question of his contributory negligence one for the jury. The other questions raised in justification of the directed verdict have been examined, but we are of the opinion that they are without merit. Error is assigned because of the refusal of the trial court to receive the following testimony: “Plaintiff offers to prove the following several facts separately: That since birth he has been troubled with a congenital defect of his right eye, under which he has never had any power of vision therefrom, and that in consequence of the injury to his left eye sued for, and the impairment of vision of that eye, his total sight has been — 627 — practically destroyed. This offer of proof is made for the sole purpose of showing the damages sustained by him by reason of the injury to his left eye, no claim being made for an injury to his right eye; it being the contention of plaintiff that this proof should be received under instructions which will confine a right of recovery to the damages springing from the injury to his left eye.” This offer presents a somewhat novel question, but I am persuaded that the proffered testimony was competent, and should have been received. It is, of course, clear that no recovery could be had for the loss of the right eye; but plaintiff was entitled to recover that of which he had been deprived as the direct and natural consequence of the injury to his left eye (Huizega v. Lumber Co., 51 Mich. 272 [16 N. W. 643]), and one of the consequences was his lessened ability to labor. If, with the aid of only one eye, he was able to labor and earn a living before the injury, and he has been deprived of that ability by the wrongful act of the defendant, he is entitled to recover for such loss. To measure this loss, it is competent to compare the man before the injury with the man after the injury. If, by reason of ill health or defect, he was able to labor only half of the time before the injury, his loss would be only half of what it would be had he been well, sound, and able to work all of the time. The point is made by defendant that— “If such evidence were admitted the average juror would be disposed to assess damages for the loss of' two eyes instead of one.” Plaintiff’s legal right must not be measured by our fears of what the jury will do. We must assume that the jury will do their duty and follow the instructions given them by the trial court. The fact that it would be difficult for a jury to separate the damages occasioned by defendant from those arising by reason of a natural defect, and the fear that jurors might allow their sympathies to influence their verdict, furnish no adequate rea — 628 — Bon for making an exception to the general rule of damages usually applied in such cases. We are of the opinion that the testimony should have been received. Baker v. Hagey, 177 Pa. 128 (35 Atl. 705, 55 Am. St. Rep. 712). See Stewart v. City of Ripon, 38 Wis. 584; Brown v. Railway Co., 54 Wis. 342 (11 N. W. 356, 911, 41 Am. Rep. 41); McNamara v. Village of Clintonville, 62 Wis. 207 (22 N. W. 472, 51 Am. Rep. 722). The judgment is reversed and a new trial granted. Steere, C. J., and Moore, Kuhn, and Stone, JJ., concurred with Bird, J.