Dillenberger v. Weingartner

• Decision Date: 05 March 1900
• Citation: 64 N.J.L. 292,45 A. 638
• Parties: DILLENBERGER v. WEINGARTNER et al.
• Court: New Jersey Supreme Court

45 A. 638

64 N.J.L. 292

DILLENBERGER

v. WEINGARTNER et al.

Court of Errors and Appeals of New Jersey.

March 5, 1900.

(Syllabus by the Court.)

Error to circuit court, Essex county.

Action by Maggie Dillenberger against Levi Weingartner and others. Judgment for plaintiff. Defendants bring error. Reversed.

Lewis Hood, Geo. Holmes, and W. D. Edwards, for plaintiff in error.

Samuel Kalisch. for defendants in error.

LIPPINCOTT, J. The plaintiff sues the defendants to recover damages for personal injuries inflicted on her on the 4th day of January, 1897, while she was engaged in the factory of the defendants, in endeavoring to lower the sash of a window, in the frame of which there was a steam revolving fan. She alleges that she was injured by reason of her hand coming in contact with the fan. Her left hand was much cut, and she lost her thumb and some fingers, and her hand was otherwise injured. The plaintiff was a servant in the employment of the defendants. She was about 32 years of age, and employed as a presser or ironer of corsets in the factory of the defendants. The evidence shows that she had been employed there about six months, and was thoroughly acquainted with the manner in which the work was performed, and the operation of the fan. She was engaged in two rooms of the factory. One was the ironing room, and the other was a sprinkling, dampening, or steam room. In this latter room there was a sink, at which corsets were dampened by hot water or steam before being pressed or ironed. The ironing room was the larger of the two rooms, the steam room being separated from the Ironing room by a wooden partition, and was about 12 feet in length by about 4 feet in width. In this room were two wooden steam troughs along the west side, one of which was immediately in front of and below a window, which was at one end of this room, in the wall thereof, leading into the open air. The steam trough under this window was about 4 feet high and about 3 feet wide, and the sides being about an inch thick. The upper sash of this window was the inside one in the window frame, and the lower sash the outside one. The upper sash had in front of it, on the inside, a revolving fan, in its frame, for the purpose of discharging the steam from the room; and the fan, with the frame, covered the whole of the upper sash, but unconnected with it, and leaving a space of about a foot, or a little less, between the fan and its frame and the upper sash,—that is, projecting that far into the room. The upper sash was movable up and down, so that it might be opened, when the fan was in motion, for the purpose of discharging the steam from the room. Overhanging the trough there was a steam jet, which was used by the Ironers for the purposes of dampening the corsets before they were ironed. The ironing room was large enough to accommodate between 20 and 30 ironers, but the steam room, with its two troughs, was only large enough for 2 ironers at one time. All the evidence on this subject shows that about 10 minutes' work at the steam jet will dampen enough corsets to keep a hand busy for more than an hour, and each of the ironers so engaged take their turn in the steam room to dampen the corsets upon which they are at work. When the machinery in the factory is set going in the morning, it causes the fan to revolve also. It makes over 700 revolutions per minute, and its operation, by reason of its noise and motion, is distinctly observable by all employed in the room. It is also in plain view, as well as the space between it and the upper sash of the window. The plaintiff had been employed at her work in this room and the pressing room adjoining for over six months, and was daily, several times a day, engaged in this steam room, in which the accident happened. On the morning of this accident, the plaintiff, with another woman, went into this room as soon as they came into the factory, with corsets, to be dampened at the steam jet. The plaintiff took her corsets to the steam jet over the trough above which the revolving fan in the window was placed. The steam was shut off, and the fan was in operation, and the upper sash of the window was closed. She turned the steam jet to go to work, when she noticed that the upper sash of the window was closed. She turned off the steam, and then undertook to lower this sash of the window, for the purpose of affording an escape of the steam which would come from the steam jet, and in endeavoring to do so she put her hand, either wholly or partly, in the fan, and it was injured very severely. The evidence on the part of the plaintiff shows that during her employment in this factory she had seen this fan in daily operation. She saw the fan put in its frame in the window, and had observed its operation from day to day, and she knew it was dangerous for any one to put the hand into it, through it, or to touch it. She saw that there were flanges, with spaces between, and that when it was revolving it looked as if there was a space between the rim of the moving fan, and the inside of its frame; but she knew also that this space was a deceptive one. She also was entirely aware of its location in respect to the space between the fan and the sash. When she attempted to lower the upper sash behind the fan, she testifies that she saw it was revolving, and going very fast. She says that there was but little or no steam in the room at that time. She is, in parts of her evidence, uncertain of the manner in which she attempted to take hold of the sash of the window behind the fan to lower It, or whether she took hold of it at all. She knew that there existed the space between the upper window sash and the frame of the fan, and that the proper way to lower it was to reach below the frame of the fan, take hold of the sash, and pull or push it down, and thus the hand would be entirely free from any contact with the fan in front of the sash. She says that she had never attempted to open the window before this time, that it was the work of the first woman who arrived in that room in the morning, and that she was the first one to arrive this morning. There is other evidence that it was not a part of her work to open the window, that it was the work of the foreman of the defendants, and that, when it was necessary to have the window opened, he was called to open it. However that may be, this case is treated as if the opening of the window was a part of the work of this plaintiff or of her co-servants, engaged with her in this employment. In order to draw down the upper sash, she testifies that she kneeled on both knees upon the rim of the trough at which she was standing and working, and braced herself with her right hand against the partition, and with her left hand reached up to lower the upper sash., She testifies further that she cannot tell how her hand slipped into the fan, and that when she was hurt she did not have hold of the sash of the window. Again, she testifies that she could see the whole frame of the upper sash. Again, she says she could not see it, because the fan was running "so quick." After the jury had taken a view of the premises, she being there with the jury, and seeing the fan in the window, she was recalled, and the following questions were put to her: "Q. Since you have seen the fan in the window, has it recalled to your memory where it was you took hold? A. Well. I took hold of the frame of the fan. I thought that was the frame...