
    MASTER AND SERVANT — NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    November 6, 1905.]
    Parker, Haynes and Wildman, JJ.
    Herman Bresewski, an Infant, v. Royal Brush & Broom Co.
    1. Action fob Damages cannot be Predicated upon Pact of Obstruction on Floor, of which Master could have had no Notice.
    An action for damages for personal injuries cannot be predicated upon the fact that the plaintiff was injured by falling over a piece of wood lying on the floor of a factory; where it appears from the evidence that the floor was ordinarily clean and in good condition and that if such bloek of wood was on the floor as alleged, it had been there not more than five minutes, and that the attention of the defendant had not been drawn to it or that by the exercise of reasonable care it would have been drawn to it within such time.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 188-196. —Ed.]
    ,2. Question whether Failure of Employer to Guard Machinery was Negligent is for Jury. ,
    Proof of the failure of an employer to place guards about the band wheel and main belt of certain machinery furnishes under the laws of this state, at least a scintilla of evidence of negligence on his part, and the question should be submitted to the jury to say whether or not under all the circumstances of the case the master was guilty of a want of due care.
    [For other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 118, 119, 687-■890. — Ed.]
    S. Negligent Exposure of Machinery by Master is Proximate Cause of Injury to One Falling Against Same.
    If it appear that personal injuries are the result of two concurrent and practically contemporaneous causes, one of which is the negligence of an employer, both will be regarded as proximate causes of the injury; hence if a personal injury to a servant was caused by his falling against a main belt and band wheel of certain machinery which was exposed by the negligence of the master, the fact-that such fall contributed primarily to the ' accident will not relieve the master from the consequences of his negligence.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 242-245; ■“Negligence,” §§ 235-237, 240-253 — Ed.]
    ERROR to Lucas common pleas court.
    Ashton Coldham, for plaintiff in error.
    King & Tracy and H. W. Lloyd, for defendant in error.
   PARKER, J.

This is an action to recover damages on account of personal injury to this infant. He was a boy fourteen years of age; he was employed by the Royal Brush and Broom Company, and while in their employ working in their factory in this city, he fell, and, as he fell his hand and arm went into part of the machinery and was caught by an unguarded belt and pulley or wheel, and was drawn into it and injured. It is averred in the petition that the company was negligent in that it allowed a certain bloek or piece of wood to remain upon the lioor where he was at work and that he stumbled over this and fell; and, further that the company was negligent in that it did not keep the' machinery guarded as required by statute, and that this unguarded machinery was one of the causes of the physical injury he sustained.

' At the close of the plaintiff’s evidence, on motion of the defendant ■the jury was directed to return a verdict for the defendant,, which was done, and judgment was entered upon it; and it is on account of this action that the plaintiff in error prosecutes error here. It was said by the judge of the court below, in passing upon this motion that there was no evidence tending to show that the defendant was in fault in the matter of allowing the block of wood to remain upon the floor, and it farily appears from the evidence that the floor was kept clean and in good condition, and that if this block of wood was upon the floor, as charged1 by the plaintiff that it had been there but a few moments, not more than •five minutes and it did not appear that the attention of the defendant had been called to it, .or that by the exercise of ordinary care it would have been drawn to it within that time.

It did appear, however that this machinery was unguarded, that is to say this belt and the wheel or pulley around which it revolved. The plaintiff below attempted to prove that it would have been practicable to guard it as provided by statute, but he was not permitted to do this, and no weight or consideration was given to the fact of the machinery being unguarded, because of the view.this court entertained that the fact that the machinery was unguarded was not a proximate cause of the injury.

We are favored with the opinion of the judge of the court below and we observe that when he comes to discuss this matter fully and carefully upon the motion for a new trial, he states that the questions are two: first, was the defendant ’negligent in not enclosing the belt and pulley ? and second, if so, was that negligence the proximate cause of thé accidents And he continues:

“As to the first question Rev. Stat. 4364-89c (Lan. 7344), among other things provides that the owners and operators of factories shall, enclose all exposed cogwheels, fly wheels, band wheels, all main belts transmitting power from engine and dynamo, or other kind of machinery” — and then a hiatus on account of part of the statute not applicable — “with substantial railing.”

Revised Statutes 4364-89c (Lan. 7344) makes a violation thereof a misdemeanor, therefore the act is penal in its nature. But whether it should be strictly or ^liberally construed is, in my opinion of no importance, for the reason that the provision above quoted states a rule of evidence and nothing more can be claimed for it. There is no evidence that the belt with which the plaintiff came in contact was a main belt, and the word pulley is not to be found in that portion of the statute, to which I have referred. That the omission of the word pulley was intentional and its apparent distinction between a pulley and a band wheel or fly wheel is evidenced by the fact that provision is made therefor by the subsequent portion of the section.

Now it seems to us, upon looking at this record that the learned judge must have been under some misapprehension as to the evidence that had been adduced. He says, “It will be observed that there was no evidence that the belt with which the plaintiff came in contact was a main belt.” But one Charles A. Bassett was a witness for the plaintiff. According to his testimony he was a man of experience in machinery and with machinery of this character, and, in the course of his examination he is asked this question:

“I will ask you how that machine is operated?” (I may say here that the machine in question on which the boy was hurt is technically called a sticker, it is a wood working machine.) Q. “I will ask you how that machine is operated?” A. “It is operated, do you mean driven?” Q. “Yes, driven, how does it get its power?” A. “It was driven by means of a belt over a line shaft very near over the machine, going to a countershaft to the machine.” I undestand that to mean a countershaft which was a part of the machine, a countershaft off the machine. Q. “Around what did the belt pass?” A. “Around the pulleys, a large pulley on the main shaft and a tight and loose pulley with the drive pulley of the machine. ” Q. “ Those pulleys, what other terms or names is there for them, — wheels?” A. “Yes, sir, they are sometimes called wheels” — Then the court inquires, “Do you mean a band wheel?” A. “Not in this case.” Q. “The belt that you have before you, is that a main belt?” A. “Yes, sir.” Q. “These wheels, are they wheels pertaining to the machinery?” A. “Yes, sir, etc.”

So it will be observed that the witness testifies distinctly that the belt in question was a main belt; he also says that this was not a- band wheel, or at all events, he answers when asked if he means a band wheel, “No, sir, not in this case.” I am bound to say we do not understand this answer of the witness. It seems to us from an examination of the photographs and from the little knowledge we have of machinery and from the description of the witness as already given of this machine, that the wheel in question was in fact a band wheel. There must have been, we think some misapprehension upon the part of the witness when he gave this answer, or he did not mean what the answer would seem upon its face to import. The wheel in question on the machine was what is called a tight and loose pulley, part of the wheel being tight to the shaft rim or face, the other part, perhaps half of the wheel being-loose, so that when the belt connected with the main shaft is put over upon the part of the wheel that is tight, it causes the machine to operate when it is moved over into part of the pulley which is loose, of course the wheel simply goes round and round on the shaft and the machine does not operate.

Now the statute upon this subject is Rev. Stat. 4364-89c (Lan. 7344) and it provides in part as I have read from the opinion of the judge of the court below. It will be noticed that it mentions among other things to be protected, “exposed cogwheels, fly wheels, band wheels, all main belts transmitting power from engine to dynamo, or other kind of machinery, ’ ' etc. And we understand that a band wheel mentioned in this connection is such a wheel as is under consideration here, a wheel that is otherwise described as a pulley. The judge below thought not, because he s^ys that in another part of the section pulleys are specifically mentioned and provision is made therefor. But the only other provision in the section when pulleys- are mentioned is this “the guarding of all saws and other woodcutting and wood shaping machinery, providing shifters for shifting belts, and poles and other appliances for removing and replacing belts on single pulleys, and adjusting runways, and stag-' ing used for oiling and other purposes, more than five feet from floors with hand railing and pi’oviding countershafting with tight and loose pulleys or such other suitable appliances, in each room, separate from the- engine room, ’ ’ etc. There is no other provision for the guarding of pulleys, unless it is to be found‘in this provision, and we think it is. The judge speaks of fly wheels and band wheels as if they were similar parts of the machine; but we understand that they are quite different, that a fly wheel is not a band wheel and a band wheel is not a fly wheel; that a pulley upon a machine over which a belt or band passes, by which the machine is operated, is a band wheel; that it cannot well be anything else — the very name of the Wheel implies that. I read from the Standard Dictionary the definition of pulley — one of the definitions “pulley, a wheel usually flat faced, or nearly so, driving, carrying or being driven by a leather belt or the like, sometimes called a belt pulley.” And from Webster's Dictionary under the head of pulley. “A wheel with a broad rim or grooved rim for transmitting power or imparting power to the’different parts of machinery or for changing the direction of machinery by means of a flat belt or round cord or loop.” And we all know that the danger in and about a belt and pulley is the fact that the belt may draw one into the pulley, and that it is by reason of being drawn between the belt and the pulley that injuries frequently occur; and we have no doubt but what it was the purpose of the legislature to guard against accidents of this character. And they could not enclose this kind of a wheel or guard the belt without at the same time guarding the pulley. It is sufficient however, for the purposes of this case upon this point to say that there is evidence in the record, tending to show that this is a main belt and that a main belt must be guarded' is clear from the statute.

The fact that this main belt was not guarded clearly appears;; there is no dispute about it. If an injury resulted to this boy in consequence of the belt not being guarded, or the pulley and belt, the condition of it, affords some evidence of actionable negligence. What degree of evidence under the decisions of this state, we are not prepared to say; we do not feel called upon to say. 'It is sufficient for the purposes of this ease to furnish some evidence. In some jurisdictions it is evidence of itself per se negligence; in some jurisdictions it raises a presumption of negligence; in others the term prima facie case of negligence is used. But certainly it furnishes a scintilla of evidence upon which a case so far as that feature is concerned, should go to the jury. For rules on the subject and citations and decisions of different states, I cite Shearman & Redfield, Negligence See. 13. There have been some holdings along this line by the circuit courts and other courts inferior to the Supreme Court of the state; but our attention' has not been drawn to any declaration by the Supreme Court.

That leaves then for consideration, we think, only the question which the learned judge has mentioned as the second question in the case. We 'think in deciding what he called the first question, that he must have overlooked the statement of the witness that this belt was a main belt.

Now, this young man was working at this machinery; there were many machines on the floor, it was a large factory, a large floor. He was engaged in carrying blocks of wood from one side of the building part way across the building, down a broad aisle to another machine called a shaper. He had been carrying during the forenoon of the day from a certain corner of the room, which did not require him to go very near to this machine called the sticker where he was afterward injured. The blocks had all been carried from that part; he was required to go to a place near the wall immediately in the rear of this machine; and his direct way to carry these blocks over to the shaper where he was required to carry them was to use the alley way between this sticker and another machine, a broad, comfortable, safe place apparently, something like five feet six inches in the clear; but as he was passing through there with his first load of blocks which appears to have interfered somewhat with his seeing, for the blocks were piled us as high as his nose, as he testifies, he came to the vicinity of this machine he fell; he either stumbled or slipped or his ankle turned or something happened that he fell, and as he fell, this machine being to the right of him, he threw out his arm in some way, the machine was in operation and his arm was caught between the belt and the pulley and wrenched and injured.

The court below was of the opinion that the fact that the pulley was not guarded was not a proximate cause of the injury, and the same line of argument is pursued by counsel for the defendant in error, that the proximate cause of the accident was this block of wood which caused the boy to fall, that the proximate cause of the injury, the physical injury to the boy may have been the failure to guard the machine; but that the failure to guard the machine was not the proximate cause of the accident. By this course of reasoning the so-called accident is divided for purposes of analysis into the accident of falling and the result of the accident, to wit, the getting of his hand and arm into the machine and thereby injuring it. It seems to us that this division is not allowable, and is not warranted; that the whole occurrence comes within the description of the accident; that it was a continuous series of events, following one upon the other, the natural sequence of each succeeding event being dependent upon that which preceded it; and that the accident consisted not only in slipping and falling toward the machine, but in falling into the machine and in having the arm drawn into the machine and injured; and that while the falling or stumbling over the blocks may have been a sufficient and effective cause of the first part of the accident or falling toward the machine, the fact that the machine was not guarded and that the boy’s hand and arm were thrown into it, whereby it was injured, was a proximate cause of that part of the accident.

The purpose of this statute, as we understand it, was and is to prevent just such occurrences and guard against them; that was the purpose of a great many provisions that we find in the statute relating to the guarding of machinery and the management of factories, and we suppose that there may be many cases where the primary movement which results in an injury from such a machine, may be a pure accident or an inadvertence and that the companies not observing this statute, the employer not observing this'statute may be liable for the consequences of such accidents. It is intended to guard against accidents and injuries resulting from one making a misstep, making a false move as he is at work about these dangerous machines, and if the employer can in all cases escape liability by showing that there was some other cause of the first primary movement, the initial movement leading up to the ultimate accident and injury, then it is quite evident that the statute has not served its purpose. By way of illustration, the statute on the subject of building may be mentioned, the statute that certain counter floors shall be placed in buildings as they are in process of construction, Rev. Stat. 4238-20 (Lan. 7420), which requires that:

“Whoever being the owner, lessee, agent, factor, architect or contractor, being engaged in and having supervision and charge of the building, erection or construction of any block, building or structure •or more than two stories in height, who shall neglect or refuse to place or have placed upon the joists of each and every story of such block, building or structure, as soon as joists are in position, counter floors of such quality and strength as to render perfectly safe the going to and fro thereon of all mechanics, laborers and other persons engaged upon the work of construction or in supervising the same, or in the building -or placing of materials therefor, shall be deemed guilty of a misdemeanor and upon conviction thereof in any court of competent jurisdiction shall be fined.”

Now it can be imagined in a ease of that kind, where one is working upon part of the'building that is not floored as the statute requires, he may fall and by reason oí the floor not being below where he falls, he •goes on down through. He is not injured by the fall, for the floor is not there. He is not injured, it may be said, by the absence of the floor, that is to say, not precisely that, — he is injured by coming to a sudden stop upon something beneath. It would be like the story we have heard of a workman upon a building falling down some thirty or forty feet. He said he was not injured by the fall, but he was jarred considerably by the sudden stop he made when he reached the ground. Now, we suppose that in a ease of that kind, although one may inadvertently fall through the space where the floor should be, although he may step uopn something whereby his ankle turns, he suddenly falls, that liability cannot be escaped from on the ground or the theory that the primary cause •of the accident was some inadvertent or accidental movement that he made, which caused him to fall.

.In a case like this one at bar, to be sure if one keeps away from the machine at a safe distance, he will be safe, he will not be hurt, the machine will not travel to him, it will keep its place; but it is to be anticipated that a man will go near these machines and a sudden gust of wind may draw his clothes into the machine, Of course if a person gets into a machine by a movement that is negligent upon his part, that would be a defense; but if he is not negligent, if by mere inadvertence, when he is going about his work, by pure accident he falls into the machine, we are of the opinion that liability cannot be escaped

upon tbe theory that there was something lying back of the fall that brought him in contact with the machine, that that thing lying back, that-primary cause is not only the proximate cause, but the only proximate causé of the injury. We had occasion to consider this subject with some care in the case of Ziehr v. Paper Co. 28 O. C. C. 342. That was an accident in many respects like this. In that case there were unguarded cogs. Mr. Ziehr was working in the vicinity of them. The floor was slippery. There appeared to be no negligence upon the defendant’s part in having the floor slippery, that seemed to be unavoidable in the kind of work they were doing. But Mr. Ziehr slipped and threw out his hand for protection, and he came in contact with these cogs and was injured. We held in that ease that the fact that the cogs were unguarded was a proximate cause of the injury, although the primary cause, one of the proximate causes was the slipping upon the floor, on account of which there would be no liability. And in the course of the opinion by Judge Hull in that case, a number of decisions are cited and some of them are commented upon, and in the course of that opinion reference was made to' the case of Milner v. Blickley, 70 Ohio St. 429 [72 N. E. Rep. 1162], a case in which Mr. Blickley while passing along the sidewalk on Jefferson street, fell into the area way by. the side of the Milner building and was injured, it was unguarded, the front was in the sidewalk, the place where an elevator was constructed to take goods into the cellar and out of the cellar; and although the primary cause of that accident was the slipping upon the icy sidewalk, yet we held that one of the proximate causes of' the injury was the failure of the Milner Company to guard this area way. Our decision in that case was reversed by the Supreme Court. There’were-two grounds urged for a reversal, one that we were in the wrong upon the doctrine of «proximate cause, the other that the record disclosed that Blickley was guilty of contributory negligence. The decision of the Supreme Court was not reported; and we are, therefore, in ignorance of the-real grounds upon which the Supreme Court decided the case. But until we are better informed, we feel like adhering to that doctrine. We feel we were right in that case, and that we were right in the case of Ziehr v. Paper Co. supra, which is now pending in the Supreme Court; and upon the authority of these eases we feel that this case so much like them especially so much like the case of Ziehr v. Paper Co. supra, must be decided in the same way, at least until we are better informed, therefore the judgment of this court will be that the judgment of the court below be reversed and the case remanded.

We do not mean to hold that the failure to guard the machine was,. under the circumstances, as a matter of law a proximate cause; but. simply that it was a question to be submitted to the jury to say whether or not under all the circumstances, the company might have reasonably anticipated an accident of this character resulting from this exposed machinery.

Haynes and Wildman, JJ., concur.  