Myrick v. Great Western Manufacturing Co.

Citations

• 96 Kan. 17
• 149 P. 702
• 1915 Kan. LEXIS 307

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Factory Act — Inclosing and Securing Elevator Shafts to Prevent Injury to Employees. The factory act (Gen. Stat. 1909, § 4676) requiring elevator shafts to be inclosed or secured to prevent injury to employees, is not complied with by having three sides of an elevator shaft inclosed and one side left open, if the failure to inclose that side causes injury to an employee.</p> <p>2. Same — Failure to Inclose Elevator Shaft — No Variance between Allegation of Petition and Proof. The plaintiff alleged that defendant had failed to comply with the provisions of the factory act and that an elevator shaft was wholly uninclosed. Held, that there was no variance between the proof and the petition because the proof showed that when the elevator was not in use and the removable panels comprising the sides of the shaft were in place, it was inclosed, but whenever the elevator was in use it was necessary to remove the panels to permit the doors of the building to be opened, and that the plaintiff was injured at a time when the panels on one side had not been replaced.</p> <p>3. Same — Contributory Negligence — No Defense to Action under Factory Act. Contributory negligence is not a defense to an action under the factory act, and in the case stated in the preceding paragraph it is no defense to show that it was the duty of the plaintiff and other employees to replace the panels which had been taken out for a specific purpose.</p>