Davidson v. Flour City Ornamental Iron Works

LEWIS, J.

Appellant is engaged in the manufacture of ornamental iron work in the city of Minneapolis. One Sandstrom, who had been in the employ of appellant for about a year, was operating an emery wheel about twenty four inches in diameter, which revolved at the rate of about one thousand revolutions per minute. The guard provided for this wheel had been temporarily “removed by Sandstrom, and while running without the guard the wheel burst, and one of the pieces struck re *20 spondent, who was at work some forty feet distant, and inflicted a compound fracture of the thigh bone. Respondent recovered a verdict, and it is argued here: (1) That the statute (section 1813, R. R. 1905) had no application to emery wheels; (2) that the evidence conclusively established the fact that Sandstrom and respondent were fellow servants ; (3) that the verdict was excessive.

1. The first part of section 1813 reads: “All saws, planers, * * * ail set screws, drums, and machinery, * * * as far as practicable, shall be fenced or otherwise protected.” And the last reads: “No grindstone, emery wheel, or machine in any factory, mill, or workshop shall be used when the same is known to be cracked or otherwise defective.” This provision is not exclusive of and inconsistent with what precedes, but is an addition thereto. Emery wheels are fairly within the first part of the section; but, notwithstanding the fact that such wheels must be guarded, there is an additional prohibition against using such wheels when they are cracked or defective.

2. Sandstrom had been employed to work upon the emery wheel, and we shall assume that he had been properly instructed not to use it without a guard. In the course of his duties it became necessary for him to change wheels to suit the implements he was required to polish, and in making such change he was obliged to remove the guard. On the occasion in question he had changed the wheel, but proceeded to use it without restoring the guard, when, after about a day’s time, it exploded.

A failure to comply with the statute constitutes negligence per se, but contributory negligence and assumption of risks are defenses which may be interposed in proper cases. Christianson v. Northwestern Compo-Board Co., 83 Minn. 25 , 85 N. W. 826 , 85 Am. St. 440; Wuotilla v. Duluth Dumber Co., 37 Minn. 153 , 33 N. W. 551 , 5 Am. St. 832; Tvedt v. Wheeler, 70 Minn. 161 , 72 N. W. 1062 ; Gray v. Commutator Company, 85 Minn. 463 , 89 N. W. 322 ; Seely v. Tennant, 104 Minn. 354 , 116 N. W. 648 ; Callopy v. Atwood, 105 Minn. 80 , 117 N. W. 238 ; Anderson v. C. N. Nelson Lumber Co., 67 Minn. 79 , 69 N. W. 630 ; Swenson v. Osgood & Blodgett Mnfg. Co., 91 Minn. 509 , 98 N. W. 645 ; McGinty v. Waterman, 93 Minn. 242 , 101 N. W. 300 ; Schutt v. Adair, 99 Minn. 7 , 108 N. W. 811 .

The steitute requires such machinery to be guarded so as to protect *21 workmen, whether operating the machinery or engaged in the discharge of any other duties in the factory. Christianson v. Northwestern Compo-Board Co., supra. In that case the party was injured while working about an unguarded saw, but not directly in connection with it. In Seely v. Tennant, supra, the deceased was caught by an unguarded revolving shaft while passing by it in the performance of duties not directly connected with it.

There is no dispute as to the facts, and the question of contributory negligence and assumption of risk have no place in this case. Respondent was engaged in other duties at some distance, and was entirely ignorant of the failure to replace the guard on the wheel. The question at issue is one of statutory construction. If the duty imposed by statute was a continuing one, and the master was required to maintain the guard while operating the wheel, in addition to installing it in the first place, then the operator charged with the control and management of the wheel and guard was the representative.of the master. On the other hand, if the master discharged his duty by furnishing a suitable guard and by exercising reasonable care in the selection of an operator, and gave him suitable instructions, then the operator was a fellow servant of respondent at the time he negligently failed to replace the guard.

Cases of this kind differ from those where, under the common law, the master is charged with the duty of providing a safe place and proper tools and instrumentalities. > In those cases the exercise of reasonable care only is required. But with reference to dangerous machinery which it is practicable to guard the rule has no application. The statute has adopted the rule of absolute duty. The master cannot delegate the performance of the act to another and thus avoid responsibility. Baddeley v. Granville, 17 Eng. R. Cas. 212; Britton v. Great Western, 19 Eng. R. Cas. 42; Groves v. Winborne, 2 Q. B. Div. 402 (1898); Sommer v. Carbon Hill Coal Co., 89 Fed. 54 , 32 C. C. A. 156 ; Lore v. American, 160 Mo. 608 , 61 S. W. 678 .

It is unnecessary for the purposes of this case to consider what the limitations of the application of this rule may be in cases where those intrusted with the duty of maintaining such guards negligently remove them contrary to instructions. There is much room for discussion and difference of opinion upon that branch of the subject. Whether *22 there be any logical distinction we need not now determine. So far as the facts of this case are concerned there should be no hesitancy in applying the rule of absolute nondelegable duty. The operator was required, in the performance of his duties, to remove the guard in order to put on another wheel. It then became the duty of the master to furnish the new wheel with a guard, to the same extent as in the first instance, when the guard was furnished. To that extent the master selected the operator as his representative, and his failure to attach the guard was the master’s act.

The instructions to the jury were quite as favorable as appellant was entitled to, and we discover nothing prejudicial in the reference by the court to the master’s duty to provide a reasonably safe place for the employees.

The verdict was large, but we cannot see that it was excessive.

Affirmed.