Evans Laundry Co. v. Crawford
| Decision Date | 21 January 1903 |
| Citation | 93 N.W. 177,67 Neb. 153 |
| Parties | EVANS LAUNDRY CO. v. CRAWFORD. |
| Court | Nebraska Supreme Court |
1. A servant who engages in any employment is deemed, as a matter of law, to have contracted with reference to the ordinary hazards and risks incident thereto, and to have assumed the same; and for any injury resulting therefrom, without negligence on the part of the master, the latter cannot be held liable to respond in damages therefor.
2. The rule of law as to the assumption of the ordinary risks incident to an employment applies to infants as well as to adults.
3. It is not required that the master, who is sued by a servant for an injury received while engaged in the line of his employment, shall plead in his answer that the servant assumed the usual and ordinary risks and hazards incident to the service, in order to be entitled to an instruction to the jury as to the rule of law regarding such assumed risks.
4. Where the assumption of a risk not usually and ordinarily incident to the employment is relied on as a defense in an action against the master for negligence, such assumption of risk must be specially pleaded.
5. If an employer has knowledge that the servant will be exposed to risks and dangers in any labor to which he is assigned, and knows or ought to know that the servant is for any cause disqualified to know, appreciate, and avoid such dangers,--the same not being obvious to the servant,--then it becomes the master's duty to give such reasonable cautions and instructions as to reasonably enable the servant, exercising due care, to do the work with safety to himself; and a failure to do so renders the master guilty of a breach of duty, for which he would be legally responsible.
6. Likewise an infant engaging in a hazardous employment is entitled to warning from the master of dangers which, on account of youth and inexperience, he does not comprehend and appreciate; and if such warnings be not given, or if they be inadequate, the master is in fault, and must answer for the consequences.
7. When, from inexperience or disqualifying causes, by reason of youth or otherwise, the duty devolved upon the master to give such reasonable instructions and cautions to the servant regarding dangers in the performance of his duties as will best avoid an injury by reason of such dangers, and the master has done so, then the servant is upon the same footing as any other employé, and is deemed, in law, to have assumed the usual and ordinary risks incident to his employment.
8. An instruction that, before the jury could return a verdict against the defendant for alleged negligence, it must be found that the defendant was guilty of the acts of negligence, or some of them, alleged in the plaintiff's petition, and that such negligence was the proximate cause of the injury complained of, does not embody the principle of the assumption of ordinary risks, and render errorless the refusal of the trial court to give an instruction as to the assumption by the servant of the ordinary hazards and risks incident to the business.
9. Instruction copied in the opinion held to state a correct rule of law, and the refusal to give the same prejudicial error.
Error to district court, Lancaster county; Holmes, Judge.
Action by Orva W. Crawford against the Evans Laundry Company. Judgment for plaintiff, and defendant brings error. Reversed.S. L. Geisthardt, J. W. Deweese, and A. S. Tibbets, for plaintiff in error.
Halleck F. Rose, Wilmer B. Comstock, and Dennis J. Flaherty, for defendant in error.
This cause comes here by proceedings in error prosecuted by the defendant in the court below, against whom a judgment was recovered by plaintiff on the ground of negligence. The negligence alleged was in respect of the operation of machinery used in connection with a steam laundry of which the defendant was proprietor, and also in relation to the manner of instructing the plaintiff how to operate such machinery; he having just prior thereto engaged himself as a servant in the employ of the defendant company for the purpose of assisting it in the conduct of its business. Several errors are assigned by the defendant company, which are in this court urged as reasons for a reversal of the judgment which plaintiff obtained in the trial court, which, from an examination thereof, as well as of the entire record, we are of the opinion that, to dispose of the case properly, we should confine ourselves to alleged errors relating to the giving and refusing to give certain instructions to the jury for their guidance in deliberating upon the evidence submitted at the trial. The other errors assigned do not impress us as possessing much merit. To fairly understand the issues, brief reference to the pleadings seems advisable: In the plaintiff's petition it is alleged, in substance, that, for a valuable consideration, he entered into the defendant's employ, to work and labor in and about its laundry; that among the machinery and its appliances used in the business was a machine called a “wringer,” with which clothes were dried, and when in use revolved at a high rate of speed: that it was an intricate and dangerous piece of machinery, requiring skilled and experienced workmen for its safe and proper operation, and skill and experience were also required to properly place clothes in the said wringer, to operate it safely, and to prevent wabblingin its rotary movements: that it was defective and out of repair, and not supplied with a brake or other proper appliance necessary to the safety of the operator. The plaintiff, it is alleged, was at the time under the age of 21 years, had not been employed about machinery, was unskilled and inexperienced, and upon entering the employ of the defendant was immediately put to work operating and handling said wringer, without any instructions from the defendant as to how the same should be handled or operated, or how to place the clothes therein, and without being cautioned against the danger of operating the same; and, by reason of the premises, while plaintiff was attempting to operate said machine, and to place the laundried clothes therein to be dried, the said machine, when put in rapid motion, revolved irregularly, so that some of the clothes hung out of the wringer, and while endeavoring to stop the wabbling, and in obedience to the instructions of the defendant that he should put his hand on top of the machine in case it wobbled, the said machine and clothes caught about the body of the plaintiff, threw him violently to the ground, breaking his arm, one of his ribs, and otherwise injuring him. The answer admits the employment of the plaintiff, and that he suffered an injury while so employed and denies the other allegations of the petition, and charges the defendant with contributory negligence. The wringer, it appears from the record, was a large oval or bowl-shaped kettle, used for drying clothes, which, when put in rapid motion, revolves at the rate of about 1,300 revolutions per minute; the water in the clothes being extracted by the centrifugal force thus set in motion. It appears that at the time the plaintiff was a young man of ordinary intelligence, and being within a few days of 21 years of age. While he had had some experience with other kinds of machinery, he was without any previous experience in operating machinery such as was in use by the defendant company in the prosecution of its laundry business. He had been at work only about 24 hours when the injury was sustained of which he complains. The evidence does not seem to us to support the allegations in the petition to the effect that the machinery was defective and out of repair, and the controversy appears to have narrowed down to the charge that the defendant was negligent in instructing the plaintiff, when he began work, how best to discharge the duties assigned him without injury to himself by reason of the machinery he was using, and properly cautioning him against the hazard and risks incident thereto. It was the contention of the defendant on the trial that all reasonable instructions and warnings were given to the plaintiff so as to advise him of the dangers of the machinery he came in contact with, and how to avoid injury in the prosecution of the work for which he had been employed, and that the injury he suffered was the result of his own negligence.
At the trial of the cause the defendant requested the giving of the following instruction, which was refused by the court, and error is assigned because of such refusal: ...
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