Jones v. American Caramel Co. , 225 Pa. 644 ( 1909 )

Opinion by

Mr. Justice Brown,

At the time Wilson H. Jones sustained the injuries for which he and his father are seeking compensation in this action he was in the employ of the American Caramel Company, operating a candy factory in the city of York. With little, if any, previous experience with machinery, he entered its employment September 5, 1906, when he was within three days of being eighteen years old, and was directed to size and cut candy. When so engaged on September 8 — the fourth day of his employment — he was told by the foreman that he had enough candy cut and was hurriedly ordered to leave the table where he was working and scrape off a heating table a few feet distant. This table, ten feet long and three feet three inches wide, extended along the west side of the room parallel with and two feet three inches distant from the wall. Above it there was set in an opening in the wall, about five feet from the floor, an exhaust fan forty-four inches in diameter. This fan contained six sharp, curved metal blades about twenty inches long. The hub around which the belting passed that operated the fan was nearly seven feet above the floor and projected out from the wall about nine inches. The blades projected from an inch and a half, at their narrowest point, to nine inches at the widest. The fan was used to draw the foul air and dust from the room through the window in which it was set, and revolved nearly 500 times a minute. In obedience to the order given him, Jones proceeded to the east side of the table and cleaned a part of it off. It was too hot, however, as he testified, for him to lean over it and scrape off the west side, and he went back of it to scrape that side. While scraping there he felt that his hat was being drawn from his head, and, reaching up his left hand to keep it on, that member was caught in the revolving fan and so badly mangled that amputation was necessary.

.The exhaust fan was installed to secure greater safety and comfort to the employees -of the defendant and constituted a part of the machinery of its factory. Of it the learned trial judge said in a portion of his charge which has not been assigned as error, “The fan was intended to exhaust the foul air from the room, and also to remove certain small particles of dust which accumulate in a place of that kind; and it was done doubtless for the safety and comfort of the workmen; and done as required by an act of assembly.” It is to be assumed that the fan was in place in compliance with the requirements of sec. 11 of the Act of May 2, 1905, P. L. 352. Another requirement of that same section is that “machinery of every description shall be properly guarded,” and the defendant is not to be relieved from the charge of negligence because, as its learned counsel contend, the plaintiffs failed to show that it was customary in factories to place guards or screens over revolving fans. The legislative mandate is that machinery of every description shall be properly guarded, and customary disregard of this is but customary negligence, rendering everyone guilty of it responsible for the consequences resulting directly and solely from it. Ordinary usage which is in disregard of a statutory duty cannot be a test of negligence.

Whether the fan had been properly guarded was submitted as a question of fact to the jury. In submitting it to them the learned trial judge very properly said that it did not seem to him that there had been sufficient guard to protect anybody from danger. He might have gone further and instructed them to find against the defendant on this question, for the only conclusion to be reached, under all the evidence, is that the fan was not guarded at all. That it was dangerous in its unguarded condition to anyone likely to come in contact with it is not disputed, and as no instruction or warning was given to the inexperienced employee as to its danger and how to avoid the same, the question of the defendant’s negligence was so clearly for the jury, apart from the testimony of the plaintiff as to his ignorance of the existence of the fan, that nothing more need be said on this branch of the case.

Wdiile the statute made it the duty of the defendant to properly guard the fan, it in no degree relieved the employee from the duty of care on his part. For the consequence of his contributory negligence the law remained the same as if the act of 1905 had not been passed. True, under that act the negligence of an employer can now be more readily established, but the injured employee must still present his case free from negligence on his part contributing to his injury; and the jury were properly instructed that if Jones did anything he ought not to have done which contributed to his injury, there could be no recovery. The foreman testified that he had directed him to stand in front of the heating table in cleaning it, but admits that he said nothing about going back of it. He further stated that the direction to stand in front was given because of the danger of the fan, but in the same breath testified that he had said nothing about the fan. The testimony of Jones is that he had not been directed to stand in front of the table; that he was simply told to scrape it; that it was too hot for him to reach over it and scrape the part next to the wall, and that he went around it, finding no obstruction in his way, and began to scrape from the west side. There was testimony by other witnesses that employees had scraped the table from that side in the presence of the foreman. Jones further testified that he knew nothing of the fan that was almost immediately back of him, as he had not noticed it in the three or four days of his employment and no one had ever told him it was there, and that in trying to keep his hat on his head his hand was caught by the blades. Neither the foreman nor any other witness called by the defendant testified that Jones had been told that the fan was there. It is earnestly insisted, however, that he ought to have seen it and known the danger of touching it. The jury could fairly have found otherwise from the testimony of several witnesses — some of them called by the defendant — who testified that even when attention was called to the fan it looked like an open window, except for the dark spot in the center, and that no sound came from it indicating its presence, as whatever noise was made by its revolutions was drowned by the other machinery in the room.

In the portions of the charge assigned as error we have discovered nothing that ought not to have been said to the jury, and in defendant’s first, second, third and fourth points, asking for binding instructions, the statutory duty of guarding the machinery is entirely overlooked. Neither of the points could have been affirmed. The act of 1905 will become a dead letter if an employer who has failed to properly guard his machinery can relieve himself from that duty by the plea that the danger was so obvious that his injured employee ought to have been aware of it and was not entitled to any warning against it. Only the contributory negligence of an injured employee, lawfully employed, will relieve the employer from the consequences of his disregard of his statutory duty. The assignments of error are all overruled and the judgment is affirmed.