Bradford v. Taylor

• Decision Date: 23 January 1905
• Citation: 85 Miss. 409,37 So. 812
• Court: Mississippi Supreme Court
• Parties: SANDERS BRADFORD v. ELIZABETH TAYLOR

37 So. 812

85 Miss. 409

SANDERS BRADFORD v. ELIZABETH TAYLOR

Supreme Court of Mississippi

January 23, 1905

FROM the circuit court of Lowndes county, HON. EUGENE O. SYKES Judge.

Mrs Taylor, the appellee, was plaintiff in the court below Bradford, the appellant, was defendant there. From a judgment in plaintiff's favor for $ 1,000 and costs defendant appealed to the supreme court.

The case was heretofore in the supreme court on a former appeal and is reported-- Taylor v. Bradford, 83 Miss. 157.

The declaration sets up negligence in defendant in failing to provide and have attached to a machine for ironing collars and cuffs a fender, and the negligence of the foreman of the laundry, employed by appellant, in setting the machine in motion while plaintiff was engaged in cleaning an iron roller, part of the ironing machine, at a time when the foreman had diverted plaintiff's attention from the machinery. The evidence for plaintiff was, in substance, as follows: Plaintiff was employed by defendant to work in his laundry. She had several years' experience working in laundries, but none with running machinery. One Zackariah Hartzell was employed by defendant to work in, and he was the foreman and general manager of, the laundry, defendant rarely coming to the plant, Hartzell having control of everything and everybody. Plaintiff was engaged in cleaning the iron roller of the ironing machine in the laundry, and her hand was caught between the upper and lower roller, and her arm was drawn into it, and was severely crushed and bruised causing the elbow joint to become stiff. Plaintiff's duty about the laundry was to starch the shirts and bosoms and collars and wipe them off and place them in the drying room, to look after the ladies' clothes and starch them; had nothing to do with running the machinery. At the time plaintiff began to clean the roller the machinery was not running. The fender was off the roller, which was necessary to protect the hands and keep them from getting in between the rollers. Plaintiff testified as to the accident as follows: "I was cleaning the machine--part of my regular work--when Mr. Hartzell kicked the lever and started the machine, and the roller above the iron caught my hand and jerked my arm between the roller and the ironer, crushing the bone of the elbow joint; and when he started the machine, he told me to clean it. He stepped in behind me just a moment afterwards, and asked me about some work that had to be gone over, and I turned my head to see what it was, and the roller above the ironer caught my arm." She also testified that she had, previous to the accident, called Hartzell's attention to the absence of the fender; that there was a fender in the building, but it had never been put on the machine. The sixth and seventh instructions given for plaintiff are as follows:

"6. The jury are allowed--and, indeed, it is their duty in such cases as this, where the law provided no other penalty--to consider the interest of society, as well as justice to the plaintiff, and by their verdict, while they make just compensation, also inflict proper punishment for the disregard of public duty, if they should feel justified by the evidence.

"7. The law devolves the power on the jury, as a matter of sentiment and feeling, to be exercised by them according to their sound discretion, duly weighing the circumstances of the case and considering the state, degree, quality, trade, or profession, as well of the party injured as of him who did the injury."

Affirmed.

Z. P. Landrum, for appellant.

To show that the appellant was not a novice in the use of this machine we point, first, to the allegation in her declaration that she was an expert laundress; and she could not have been an expert laundress and at the same time have been a novice in the use of this machine. We point next to her statement in her testimony that she had five years' experience as a laundress. Surely five years' experience as a laundress, use of ironing machine at I. I. & C. laundry, Avondale laundry, cleaning roller in Birmingham laundry, seeing feeder or fender at Empire laundry and Newby's laundry--surely all this is sufficient to overcome appellee's bare statement that she was a novice. "Words are but empty sounds; actions live in records." Can it be pretended that, with all this experience, this appellee was a novice in the use of this machine? On the contrary, her own testimony shows conclusively that she was an expert laundress.

Appellee says in her testimony that she saw this feeder--or fender, as she calls it--every day she worked at the marking table, which the testimony elsewhere puts five or six feet from the machine. Hartzell says in his testimony that a child could have instantly adjusted this fender, and Brent, plaintiff's own witness, says the only difficulty in adjusting it with one hand is to get the slots in. Now there it was, this fender, there within five or six feet of the roller; there she saw it every day while she was at the marking table, a mere child could have adjusted it; and yet, never having seen anybody try to clean a roller without this appliance adjusted in the laundries at Avondale, Birmingham, I. I. & C., and Newby's, she chose to leave it off when she started to clean this one. Can she complain? 2 Labott's Master and Servant, p. 1735, secs. 597, 604; and p. 1772, sec. 613, and notes.

Hartzell an expert, says that this feeder or fender ought to be taken off when cleaning the roller, and that its only use is as a feeder to expedite the ironing of collars and cuffs; that this machine would not be defective for cleaning if feeder or fender was off; that the machine was new and up-to-date in every respect; and that there was no chance to get hurt in cleaning this roller without gross carelessness. Brent, an expert, and appellee's own witness, says that this fender through which collars and cuffs are fed is commonly taken off in cleaning...