Brashears v. United Iron Works Co.

SEPARATE CONCURRING OPINION.

STURGIS, J.:

I concur in the result reached in this case. The case of Simpson v. Witte Iron Works, -S. W.-, recently decided by our Supreme Court and not yet reported, is decisive on the principal point raised by this appeal. The only other point pressed *514 for decision is that the evidence conclusively shows that plaintiff is guilty of - contributory negligence preventing his recovery in this, that the danger and result of letting plaintiff’s hand come so close to the cogwheels in question as to get caught was apparent and appreciated by plaintiff, and that nothing but inattention, thoughtlessness or absorption in his work could have caused his hand to come in contact with such wheels. This is true regardless of whether the pad on his hand had anything to do with his hand being caught or not. It is apparent that a slightly higher degree of care on his part would have prevented his injury.

If plaintiff’s conduct is to be judged by the same standard of what constitutes contributory negligence required prior to and in absence of the statute, section 7828, requiring such machinery to be safely guarded or notice of the danger to be posted, then it would be hard to distinguish this case from the line of cases holding such conduct to be contributory negligence as a matter of law. [Smith v. Box Co., 193 Mo. 715 , 92 S. W. 394 , Dressie v. Railroad, 145 Mo. App. 163 , 129 S. W. 1012 ; Czernicke v. Ehrlich, 212 Mo. 386 , 111 S. W. 14 ; Sanborn v. Railroad, 10 Pac. (Kan.) 860; Buttle v. Box Company, 56 N. E. (Mass.) 583.

While it is held in Huss v. Bakery Co., 210 Mo. 44, 54 , 108 S. W. 63 ; Dressie v. Railroad, supra; Millsap v. Beggs, 122 Mo. App. 1 , 7 and 11, 97 S. W. 956 , that plaintiff may be guilty of such contributory negligence as bars a recovery even in cases where by statute the machinery should be, but is not guarded, yet I do not understand such cases to hold that plaintiff’s conduct as bearing on contributory negligence is to be measured by the same standard of. care or, more accurately, that such standard rests on the same basis in cases covered by the statute as it would be if such statute did not exist. In the case last cited, the court, in speaking of the provision of the statute requiring notices of the danger to be posted in case the machin *515 ery cannot be guarded, said: “The notice was intended to operate as a continuous reminder of the danger. Otherwise, it could be posted for a day and then torn down. The statute, recognizing that trait in human nature to become inattentive to danger by constant presence with it, required this continuous notice as a protection against what might, in ordinary respects, be termed the servant’s carelessness. We, of course, do not say that the servant could not be so careless as to cause him to lose his right to hold the master liable for injury where no notice was posted. As already stated, he could be guilty of such negligence in some circumstances, as would deprive him of a right of action. But we do hold that in all cases the statute must be allowed to count for something, and to that end it should enter into consideration in determining whether there was culpability on the servant’s part. If the servant’s fault is to be determined by the usual rules applicable where there is no statute, then the enactment of the statute was well-nigh useless. The true question in such cases is: Would the servant have acted in the careless manner he did act if the reminding notice required by the law had been conspicuously before him? Or, stated in another way, should his conduct, in the circumstances, be denominated careless conduct? The notice, as already intimated, is required in recognition of a failing in human nature, and not being posted, one is apt to become unmindful of a danger which a constant warning might have caused him to avoid.”

Suppose the case, as here, is one where guards can be placed and the defendant is required to guard the machinery rather than post the notices. What then takes the place of the “continuous notice as a protection against' what might, in ordinary respects, be termed the servant’s carelessness,” or the “constant warning in recognition of a failing in human nature?” Cerlainly the servant is not held to the use of a higher *516 degree of care where there should be, but are not. guards than he is where there should be, but is not, a posted notice. The same statute, having the same purpose, covers both contingencies. If the statute in the one case, where notices should be posted and are not, recognizes and excuses this weakness of human nature in becoming inattentive to danger by reason of its constant presence, then it also recognizes and excuses this weakness where guards should be placed and are not.

The purpose and effect of this statute in modifying the rule of contributory negligence in cases covered by it by adding a new element to be considered is pointed out in the able dissenting opinion of Woodson, J., in Huss v. Bakery Co., supra, and while his remarks were held not applicable to the particular facts and instruction under discussion in that case, I think the law is there correctly stated and is applicable to this case as follows (page 72): “This instruction of defendant is based upon the theory that the common law prescribed the standard of duty the defendant owed the plaintiff in this case. That is not the law. Section 6433 prescribed a much higher degree of duty to be exercised by defendant towards the plaintiff than did the common law. Under the common law the defendant was required to furnish plaintiff only a reasonably safe place in which to work and reasonably safe means with which to perform his duties, while the statutes require the defendant to safely and securely guard the gearing when possible; and, if impossible, then to conspicuously post a notice calling attention to.the dangers. As a corollary to that increased duty of defendant, the care of the plaintiff was correspondingly decreased and the jury should have been told so in no uncertain words. ’ ’

This proposition of law also finds recognition in the latest decision of the Supreme Court, Simpson v. Witte Iron Works, supra, where it is said : “We think, therefore, that the lawmakers in conditioning the duty *517 to guard upon the phrase quoted meant thereby that it should attach when the ‘belting, etc.,’ should be so placed in a factory that its normal operation would injure any employee who -should approach near enough to be caught by its force or subjected to its activity. Such accidents are likely to happen to employees who are engrossed in work near such machines unless they are protected from the workings of the machinery by safe and secure guards. This thought is expressed with clearness, force and completeness by "WoodsoN, J., in the dissenting opinion of Huss v. Bakery Co., 210 Mo. l. c. 67 and 68, to-wit: ‘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.’ ”

This case is therefore to be distinguished from the line of cases cited by appellant holding that the servant in.somewhat similar circumstances, but where the statute did not apply, was guilty of contributory negligence as a matter of law; and the trial court did right in not directing a verdict for defendant on that ground.