Abbie Duggan v. Thomas J. Heaphy

Decision Date13 May 1912
Citation83 A. 726,85 Vt. 515
CourtVermont Supreme Court

November Term, 1910.

CASE for negligence. Plea, the general issue. Trial by jury at the March Term, 1910, Washington County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Senter & Senter, and Harry C. Shurtleff for the defendant.

W N. Theriault, Lord & Carleton and Fred L. Laird for the plaintiff.



The plaintiff worked for the defendant in the laundry of his hotel and received an injury by having her hand drawn into a power mangle while she was operating it. The action is case for negligence. The cause was tried by jury. Verdict and judgment were for the plaintiff. The defendant excepted.

The mangle in question, as the testimony tended to show it, is as follows: There is an iron steam chest six feet and ten inches long resting on frame work: The upper surface of this chest is concave, and a large cylinder twenty inches in diameter and of the same length as the chest and wrapped with felt and covered with canvas, is so fixed above the chest that it fits into the upper concave surface of the chest. The chest surrounds the lower half of the cylinder, and the two are in close contact except that when the machine is in operation the chest recedes from the cylinder about one-fourth of an inch on the receiving side. At the upper edge of the chest and on the side at which the operator of the machine stands, and of the same length as the chest, is a brass cylinder four inches in diameter called an apron. The top of the apron is about three feet and four inches from the floor, and the top of the revolving cylinder is about two inches higher. The machine is run by water power, and when it is in use the steam chest is full of steam and is very hot. The apron is stationary and is from half an inch to three-fourths of an inch from the cylinder, and as the latter revolves, in the operation of the machine, the stuff to be ironed is fed over the apron. It is the duty of the operator to spread the stuff to be ironed over the apron and push it over and downward until it is caught by the machinery described, when it is drawn on and ironed. The exact line of contact between the cylinder and the steam chest cannot be seen by the operator on account of the position of the apron, but the point of contact at either end of the machine can be seen from the corresponding end. The cylinder revolves slowly making from three to five revolutions a minute. The way in which the revolutions are regulated was explained without objection by an expert who had examined this machine and was familiar with mangles of the make of that in question. He said: "There are four inch pulleys running approximately about one hundred revolutions. On the end of those pulleys are what is called a pinion-gear, about four inches in diameter, that runs into another gear about twenty inches, and a return on the same. There is another four inch pinion-gear running into a gear on the roll, bringing the thing down to about twenty to one from the original start of the power, in other words reducing it approximately from the one hundred revolutions down to approximately about five revolutions of the roll a minute." He explained also, without objection, that the steam chest was pressed up against the roll by springs underneath regulated by a screw.

The machine in question was one of the Poland Company's manufacture, and the evidence tended to show that machines of this make are ordinarily equipped with guard rails, and that this machine had been equipped with a guard rail which fitted into small sockets, and that when the guard rail was in place is was about half an inch above the apron over which the material to be ironed was to be placed, and that its purpose was to keep the hands of an operator from being drawn in where they would be injured, and that without a guard rail the machine was not a safe appliance for mangling. The machine was bought by the defendant of a former owner of the hotel and the guard rail, which had been removed under the former ownership, had not been in place after the purchase up to the time of the injury to the plaintiff.

The plaintiff was a woman about forty-three years of age who had been in this country about fifteen years. During the greater part of that time she had done chamber work. The matter of her experience with a mangle was very fully gone into in evidence. What appeared in that regard was that before she entered the employ of the defendant she had worked more or less at laundering with a small mangle turned by hand. For a few months before the accident she had worked for the defendant in his laundry. Her work there was upon the washing machine and, as she testified, as an all-around helper. Mrs. Heaphy, who superintended the laundry, and who hired the plaintiff, testified that it was no part of the plaintiff's work to operate the mangle. The plaintiff testified that she had on a few occasions run articles through the mangle when Mrs. Cashen, the head laundress and mangle operator, was at her side. But the tendency of all the testimony was to show that the plaintiff could have done very little of this work, for Mrs. Heaphy who had charge of the laundry testified that she was there a good deal and that she never saw the plaintiff working on the mangle. And Mr. Heaphy, who, as the testimony tended to show, was frequently in the laundry, testified that he never saw the plaintiff at work on the mangle.

The accident happened while the defendant and his wife were away on a visit, and while Mrs. Cashen, the head laundress was on a short vacation; and the claim of the defendant was, and his evidence intended to show, that the plaintiff at the time of the accident was at work upon the mangle in disregard of instructions that it should not be operated in the interval referred to, liability of an accident being, as the defendant testified, one reason for the instructions. On the contrary the plaintiff testified that she was asked by Mrs. Heaphy to do the mangling of the pieces except the tablecloths, during the visit and vacation referred to. Here was a sharp contradiction in the evidence and in considering as we are about to do, whether or not the court erred in not directing a verdict for the defendant, we are bound to view the evidence in the light most favorable to the plaintiff.

At the close of the evidence the defendant moved, on various grounds, that a verdict be directed in his favor. One of the grounds, stated in various ways, was that the evidence did not tend to show negligence on the part of the defendant.

The defendant was bound to furnish the plaintiff with reasonably safe machinery and appliances, reference being had to the character of the employment, and we think there was evidence fairly tending to show that the defendant was negligent in respect to providing for use this kind of a mangle without the guard rail provided for and ordinarily used upon it; and so the question of negligence on the part of the defendant was for the jury. Geno v. Fall Mountain Paper Co., 68 Vt. 568; Morrisette v. Canadian Pacific Railway Co., 74 Vt. 232; McDuffee's Admrx. v. Boston & Maine R. Co., 81 Vt. 52; Vaillancourt v. Grand Trunk Ry. Co., 82 Vt. 416; Marshall v. Dalton Paper Mills, 82 Vt. 489.

A second ground of the motion, stated in different ways, was that the plaintiff assumed all the risks which she encountered.

If the absence of the guard rail constituted a defect or imperfection in the machinery owing to the master's negligence, and it was for the jury to say whether or not it did, the plaintiff cannot be said, as matter of law, to have assumed the risk of working with such defective machinery, for according to the tendency of the evidence she knew nothing of such an appliance as a guard rail. The law did not impose upon her the duty of becoming an inventor, and of determining that such a machine should have a guard rail, and did not hold her to have assumed the risk consequent upon the lack of an appliance which she knew nothing about. The claimed duty of invention on the part of an employer was effectually disposed of in Farrington v. Rutland Railroad Co., 72 Vt. 24; and it needs no discussion to show that such duty does not exist on the part of an employee.

There can be no assumption of risks due to a master's negligence in providing defective machinery unless the servant knows, or must be taken to know, both of the defect and of the danger attending it. The doctrine is thus stated in Skinner v. C. V. R. Co., 73 Vt. 336 340, where it is said: "If a servant, knowing that the master has neglected his duty and that he is thereby subject to dangers not incident to the employment, continues in the service, the increased danger becomes an incident of the service which he assumes, and, form an injury resulting therefrom, the master is not liable." This passage is, without change but with due credit, incorporated into the text of the third edition of Cooley on Torts, and is given as a correct statement of the law on the point under considerations. Cooley, Torts, 1045. That a servant does not assume the risk of encountering dangers caused by the master's negligence unless he knows, or must be taken to know, that such dangers result from defective conditions is the clearly expressed doctrine of the still earlier case of Severance v. New England Talc Co., 72 Vt. 181. There an employee was injured because the wall of an excavation had not been left in a reasonably safe condition. The Court said: "There was no special assumption of this risk, for it does not appear that ...

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