Bier v. Hosford

• Decision Date: 04 August 1904
• Court: Washington Supreme Court
• Parties: BIER v. HOSFORD et al.

77 P. 867

35 Wash. 544

BIER v. HOSFORD et al.

Supreme Court of Washington

August 4, 1904

Appeal from Superior Court, Spokane County; William E. Richardson Judge.

Action by Stella Bier against A. A. Hosford and others, copartners doing business under the firm name and style of the Washington Steam Laundry. From a judgment for plaintiff defendants appeal. Reversed.

Post Avery & Higgins, for appellants.

Shine & Winfree and W. F. Townsend, for respondent.

PER CURIAM.

Action brought in the superior court of Spokane county by plaintiff Stella Bier, against A. A. Hosford, J. T. O'Brien, and J. Anthony Smith, copartners doing business under the firm name and style of Washington Steam Laundry, defendants, to recover damages for personal injuries. Verdict and judgment were rendered in plaintiff's favor for $2,100, and defendants appeal.

It is alleged in the complaint that the defendants negligently and willfully permitted a five-roll mangle, owned and operated by them, to be run and operated without its guard, and ordered plaintiff to work around and upon, and to adjust the clothing for, and to feed the clothing to the said mangle, which was unsafe and insecure and unprotected by any of the ordinary guards usually maintained upon such mangles, and the said defendants willfully removed the guard from the said five-roll mangle with a careless disregard for the safety of others, and greatly increased the danger of working in and around said mangle, which danger, if the said guard had been allowed to remain upon the said mangle, would have been very slight, or none at all; that, in order that the said mangle should receive and turn out more work, the said defendants strained and forced their servants and this plaintiff to increased activity in a place carelessly and willfully made unsafe by the defendants; that said guard was removed from the said mangle by defendants prior to the time plaintiff commenced work at said laundry, and she was not informed and did not know that part of said machine was missing, and she had no knowledge of machinery, and said mangle was so constructed that she could not have seen and did not see any danger connected therewith; that the said defendants well knew the dangerous condition of said mangle and of the risks incident to the work required upon and around and in feeding said mangle, and this plaintiff had no knowledge or means of knowledge thereof; that defendants had full knowledge and notice of plaintiff's ignorance thereof, and did not warn said plaintiff, nor impart said knowledge to her. It is also alleged in the complaint that on November 27, 1901, the plaintiff, without fault of her own, had her right hand caught under the first roller of said mangle, and the same was severely crushed between said roller and the heated concave iron underneath, and that said hand was also severely burned. Appellants, by their answer, deny the material allegations of the complaint, except that a portion of respondent's hand was caught in the mangle, but they deny any knowledge or information sufficient to form a belief regarding the extent of such injuries. For an affirmative defense it is alleged that the respondent was, at the time of the accident, and for a long time prior thereto, thoroughly familiar with the machine operated by her; that she had been advised of the dangers incident to the operation thereof; that such dangers were apparent and obvious, which she thoroughly knew and understood; that she assumed whatever risk there was connected with the operation of said mangle; that at the time of the accident she was operating such mangle in a careless and negligent manner; and that said accident was caused by her own negligence. The reply denies the affirmative matter alleged in the answer. At the conclusion of the evidence adduced in respondent's behalf at the trial, appellants moved in the lower court that this case be taken from the jury, and that judgment be rendered herein in their favor.

The assignment of error predicated upon this ruling of the trial court presents the pivotal question in this controversy. The record shows that the trial of this action began in the lower court on June 18, 1902. Respondent testified that she was than 25 years of age; that in the latter part of June, 1901, she commenced to work for appellants at their steam laundry as an ironer; that a month or so thereafter she went to work as one of the feeders on the mangle described in her cmplaint; that she had worked in a laundry about one year, but that this was her first experience in working on mangles. This mangle was installed in the Washington Steam Laundry between five and six years prior to the trial. James Thierry, a former part owner in this laundry, and a witness for respondent, testified that a guard came with this mangle. 'Q. Describe that guard to the jury. A. That guard is a piece of iron about eight feet six inches long, and is bent at an angle, and square, and one side of it is four inches and the other side is about an inch or an inch and a quarter. I could not say exactly.' He testified further that this guard was intended to be placed between the operator and the first roller; that he thought the machine 'would be just as safe without the guard as with the guard, and be easier to work on the mangle.' 'Q. If that guard were on, could a person put his fingers into the rollers? A. * * * I could not say if they would put them in with the guard or not. * * * There probably was three-quarters of an inch between the plate and the guard; that is, from the plate to the guard. Q. How far was that guard placed in front of the first roller? A. That top of the guard comes close on the roller, and the bottom of it would be probably between an inch and a half and two inches from the roller.' The five metal rollers or cylinders comprising a portion of this mangle were a trifle over eight inches in diameter. When in operation, these cylinders, enwrapped in blankets with an outside covering of cotton fabric, revolved toward the feeders, and approached the concave iron underneath sufficiently close to catch the clothes fed into the machine and carry them through. The cylinders were visible. Whether the concave iron was partly or completely hidden from view while the mangle was in operation does not definitely appear from the testimony. The respondent, however, admitted that she knew of this hot iron. She testified, 'I thought it was necessary to have an iron to iron the sheets.' The concave iron was bare. These cylinders and this iron were hot when the machine was in operation. If the fingers should come in contract with the cylinders, the covering thereon would prevent them from getting burned. Between the persons feeding and the foremost cylinder was a sheet-iron apron, attached to the machine, on which the goods were placed, then straightened out, and the wrinkles removed therefrom. The feeders stretched the goods out upon this apron, and held them in position till caught by the moving cylinder and carried over the concave iron. The purpose of this guard, when placed between the feeders and front cylinder, was to prevent the hands of the feeders from coming in contact therewith. Between 7 and 8 o'clock on the morning of November 27, 1901, one Mrs. Dick and respondent were feeding this mangle; respondent taking her position at the right and Mrs. Dick at the left in front of the machine. Mrs. Gladden was forewoman of the laundry at the time. Respondent testified that Mrs. Dick had charge of this mangle at that time; that respondent received her orders from Mrs. Dick; that the laundry at that date was overcrowded with work, and that she (respondent) was then under 'hurry up' orders from Mrs. Dick to push the work; that there was no guard on this mangle at the time she was injured; that she did not know there was any place for a guard on such machine, or that a guard came with the mangle; that while she was engaged in feeding the mangle she 'did not see any danger'; that she did not know there was any danger in feeding without a guard. On respondent's further direct examination she testified in response to questions propounded to her, as follows: 'Q. What were you feeding to the mangle at the time before this accident? A. I was feeding a round cloth. It was made of canvas, and there was a hole in the middle, and a cord drawn around the edge, and I was feeding that through, and in some way my hand got caught in the cord, and was jerked through. Q. This round cloth you describe, Miss Bier, what is it used for, if you know? Have you heard since then? A. I think for gambling tables. Q. The cloth that you describe had a hole in the middle--a small hole? A. Yes, for chips. Q. To drop chips through? A. I think that is what it is for. * * * Q. Was this cord you speak of loose or tied? A. It was tied, gathered up. Q. What material did you say that cloth was made of? A. Made of something heavy. I think it was canvas. * * * Q. Is it harder or easier to feed that cloth to the mangle or a plain, ordinary spread or sheet? A. I think it is harder to feed a cloth of that kind. * * * Q. I will ask you now, in placing that cloth into the mangle and trying to keep it straight, to explain to the jury, if you can, how your hand got caught, as you are testifying? A. I don't know how it got caught, it went in so quick. Q. Where did your hand go to? A. It went inside, under the upper first roller.' On cross-examination respondent testified concerning this cord, 'I believe it was tied, or it would not have drawn up;' and, further, that she did not see either of the proprietors at the laundry that morning, prior to the accident.

In Walker v. McNeill, 17 Wash. 590, 50 P. 521, which was an action to recover compensation for personal injuries the...