Opinion of the Court.

"(1) The testimony on the part of the plaintiff fails to show any negligence on the part of the defendant; (2) the testimony on the part of the plaintiff fails to show that the cover pleaded in the petition would have lessened the risk of the plaintiff; (3) because the testimony in this case fails to show that the conveyor as used is not such as is ordinarily used by persons engaged in like business; (4) because it is not shown that it would be practicable to use a conveyor with a cover or screen over the same, and because it has not been shown that the failure to use a cover or screen was the proximate cause of the injury; (5) because the testimony on the part of the plaintiff does not show how the accident happened; (6) because the testimony of plaintiff shows that he was guilty of contributory negligence at the time, which was the proximate cause of the injury."

Said demurrer and motion was overruled, to which defendant duly excepted.

Under the view we take of this case, it is unnecessary to set out or consider the grounds of the motion for continuance, any of the evidence of defendant, or exceptions to the evidence of plaintiff, any instructions asked by defendant, and refused, or the general instructions of the court.

The jury found for plaintiff and assessed his damages in the sum of $3,000; to which defendant duly excepted. Defendant timely moved the court for a new trial, which was overruled, and judgment entered on the verdict; to which defendant duly excepted. To reverse said - judgment this appeal is prosecuted.

There are but two propositions involved in this controversy: (1) Was the defendant negligent in not having said cotton seed conveyor covered? (2) If defendant was negligent in not having said cotton seed conveyor covered,

Sallisaw Cotton Oil Co. v. Holland.

was such negligence the proximate cause of the injury suffered by the plaintiff?

It is strenuously insisted in the argument or brief of plaintiff that the act known as the "Factory Act," as found in section 3746, Rev. Laws 1910, was violated by defendant's failing to have said cotton seed conveyor "properly guarded," and that this violation was such negligence as to entitle plaintiff to a recovery, under the evidence in this case. With this contention of the learned attorneys for plaintiff, we cannot agree, as we do not think said Factory Act can be construed as in any way applying to the instant case.

The case of Curtis & Gartside Co. v. Pribyl, 38 Okla. 511, 134 Pac. 71, relied upon by plaintiff as in conflict with our view "that the said Factory Act does not apply in this case," holds that:

The act was "to protect persons employed and laboring in manufacturing establishments while in the performance of any duty, whether ordinary or general, exceptional or occasional. But its protection extends only to persons acting within the scope of some employment."

Certainly plaintiff was not acting within the scope of some employment in a manufacturing establishment; hence said case is not in point with the contention of plaintiff, but directly supports the view expressed by us that said Factory Act is not applicable to the case at bar.

The following cases support the proposition that one, to come within the provisions of the Factory Act when injured, must be engaged in the discharge of some duty as an employee: Christianson v. Northwestern Comp. Board Co., 83 Minn. 25, 85 N. W. 826, 85 Am. St. Rep. 446; Hartman v. Berlin & Jones Envelope Co., 71 Misc. Rep.

Opinion of the Court.

30, 127 N. Y. Supp. 187; Cook v. Danaher Lbr. Co., 61 Wash. 118, 112 Pac. 245; Thompson v. Edward P. Allis Co., 89 Wis. 523, 62 N. W. 527.

Plaintiff's work did not require him to work with the conveyor, or within its danger zone. Therefore defendant did not owe him the duty of keeping said conveyor covered. In Dettering v. Levy et al., 114 Md. 273, 79 Atl. 476, it is held:

"In determining whether the location of an unguarded revolving shaft is dangerous, so that it is negligence to fail to guard it, the question is whether the operatives while in the discharge of their duties are likely to come in such close contact with it as to produce injury."

In Gelder v. International Ore Treating Co., 150 App. Div. 184, 134 N. Y. Supp. 782, it is held:

"Under Labor Law (Consol. Laws 1909, c. 31) sec. 81, requiring machinery to be properly guarded, the duty to guard only arises when there is a reasonable anticipation of danger."

In Cincinnati, R. & M. R. Co. v. Troutman et al., 38 Ind. App. 700, 75 N. E. 277, it is held:

"Factory act, sec. 9 (Burns' Ann. St. 1901, sec. 70871), requiring that all vats, pans, saws, planers, etc., and 'machinery of every description,' shall be properly guarded, only requires the guarding of such parts of machinery in a factory within the statute as are dangerous to employees whose duty requires them to work in the immediate vicinity thereof, and which may be properly guarded without rendering it useless for the purposes for which it was intended."

In order to sustain a recovery for injuries under the law requiring the employer to guard dangerous machinery it must be shown that the person injured was an employee,

Sallisaw Cotton Oil Co. v. Holland.

and that the machinery could be properly guarded without rendering it useless. Robbins v. Ft. Wayne Iron & Steel Co., 41 Ind. App. 557, 84 N. E. 514.

If, however, it be admitted that the Factory Act is applicable to the instant case, was it negligence to have said cotton seed conveyor uncovered? The undisputed evidence is that, in order to use said cotton seed conveyor for the purposes of its erection, it was necessary to have said conveyor open, and consequently it was not practical to have said conveyor guarded. It is only when it is practical to have the machinery guarded that the employer is liable for injuries suffered by reason of failure to have said machinery guarded. Curtis & Gartside Co. v. Pribyl, supra.

In Reddington v. Blue & Raferty, 168 Iowa, 34, 149 N. W. 933, it is held:

"The duty placed on the master by Code Supp. 1907, sec. 4999a2, to guard a machine used in bottling pop requires that he provide such guard as is fit, suitable, and appropriate to reasonably protect the operator from the bursting of a bottle, so far as practicable, without unreasonably interfering with the efficiency of the machine."

In Wagner v. Standard Sanitary Mfg. Co., 244 Pa. 310, 91 Atl. 353, it is held:

"As used in Factory Act May 2, 1905 (P. L. 352), requiring that dangerous machines be properly guarded when in operation, the phrase 'properly guarded' means suitably guarded according to the circumstances and possibilities of the particular case. Hence, if a machine cannot be protected in any manner without rendering it useless, there is no suitable guard for it, and it cannot be 'properly guarded.'"

Opinion of the Court.

The only negligence on the part of defendant averred in the petition or attempted to be shown by the evidence is that said cotton seed conveyor was not covered. This brings us to the pivotal question involved in this case. Even if it be admitted that the failure to have said cotton seed conveyor covered was negligence, we are at a loss to see any causal connection between said negligence and the injury received. To entitle plaintiff to recover, it must be shown that the injury received was the result of causal connection with the negligence alleged.

In St. Louis & S. F. R. Co. v. Darnell, 42 Okla. 394, 141 Pac. 785, it is said:

66* * * It has been often held that, although the defendant may be guilty of negligence, yet, to make it liable to a person for injuries received, it must be further shown that the negligence had a causal connection with the injury; that is, that it was the proximate cause of the injury."

The cause that brought about the deplorable accident here complained of is not shown by the evidence. It is a mere conjecture. Was it due to want of care by plaintiff, in attempting to alight from the wagon; or was it due to the action of his mules in throwing him from the wagɔn? Certainly there is no evidence that the open conveyor was the cause of negligence that brought about the injury complained of.

In Fifelski v. Grand Rapids Gaslight Co., 181 Mich. 503, 148 N. W. 195, it is held:

"Where an employee was injured while in the act of stepping off an elevator maintained by his employer, and operated by a coemployee, by the sudden starting of the elevator, the failure of the employer to inclose and secure