Evans Laundry Company v. Crawford

• Decision Date: 21 January 1903
• Docket Number: 11,975
• Citation: 93 N.W. 177,67 Neb. 153
• Parties: EVANS LAUNDRY COMPANY v. ORVA W. CRAWFORD. [*]
• Court: Nebraska Supreme Court

93 N.W. 177

67 Neb. 153

EVANS LAUNDRY COMPANY v. ORVA W. CRAWFORD. ^[*]

No. 11,975

Supreme Court of Nebraska

January 21, 1903

ERROR from the district court for Lancaster county. Action in the nature of case by an employee against an employer for damages received from employer's alleged negligence in the operation of machinery. Tried below before HOLMES, J. Verdict for $ 6,833. Judgment on verdict. Reversed.

REVERSED.

Stephen L. Geisthardt and Addison S. Tibbets (J. W. Deweese, on motion for rehearing), for plaintiff in error.

Halleck F. Rose, Wilmer B. Comstock and D. J. Flaherty, contra:

The duty of instructing the servant as to his duties was specially delegated to Bryant. The master, by delegating such authority, assumed responsibility for Bryant's acts.

A vice-principal, as the term is used in the law of fellow servants, is a servant who represents the master in the discharge of those personal or absolute duties which every master owes to his servants.

In Crawford's case it is not disputed that the servant about to assume new duties was inexperienced, and that it was thought necessary by the master himself to undertake the new servant's proper tutelage and instruction. This duty the master, by his own statement, specifically delegated to Bryant. Crawford was placed in charge of Bryant. The demonstrations and oral instructions given by the latter to Crawford, therefore, bind the master as though performed by him personally.

The adjudged cases contain many instances where a mere employee who is thus charged with the duty of properly instructing other employees, represents the master as vice-principal, and that the master is liable for the negligence of the servant in the discharge of that particular duty. Pullman's Palace Car Co. v. Harkins, 55 F. 932; Burke v Anderson, 69 F. 814, 34 U. S. App. 132; Ft. Smith Oil Co. v. Slover, 58 Ark. 168; Wheeler v. Wason Mfg. Co. 135 Mass. 294; Brennan v. Gordon, 118 N.Y. 489, 16 Am. St. Rep. 775; Lebbering v. Struthers Wells & Co. 157 Pa. St. 312, 33 Week. No. Cas. 99; Burns v. Matthews, 40 N.E. [N. Y.] [1895)], 731.

OPINION

HOLCOMB, J.

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, from 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 was also required to properly place clothes in the said wringer, to operate it safely, and to prevent wabbling in 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 twenty-one 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; that the said machine, when put in rapid motion, revolved irregularly, so that some of the clothes hung out of the wringer; that, by reason of the premises, while plaintiff was attempting to operate said machine and to place the partially laundered clothes therein to be dried, and while endeavoring to stop the wabbling, in obedience to the instructions of the defendant that he should put his hand on top of the machine in case it wabbled, the said machine and clothes caught about the body of the plaintiff, and 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 plaintiff 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 thirteen hundred 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 was within a few days of twenty-one 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 twenty-four 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 in 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: "Infants as well as adults assume the ordinary risks of the service in which they engage; but an infant engaging in a hazardous employment is entitled to a warning against dangers which a person of his age and experience would not ordinarily comprehend. Therefore, if you find that the plaintiff Crawford was warned how he might be injured by the machine and that he was warned in such a way as would be sufficient to apprise an ordinary person of his age and experience of the danger, then he assumed the risk and the defendant would not be liable for the injury received from causes against which he was warned." The court gave no instruction covering and including the substance of the one above requested and refused. While it is argued by the defendant that the refusal to give this instruction was prejudicial error, the plaintiff meets the argument by advancing, first, the idea that the assumption of the risks ordinarily incident to any employment must be pleaded by a defendant before he is entitled to have the jury instructed thereon; second, that the instruction is not applicable in this case because of the duty of the master to properly instruct the servant as to the danger connected with the operation of the machinery in the line of his employment with reasonable caution as to how the same may be avoided, which it is alleged the defendant failed to do; and, third, that the instruction as formulated is not a correct exposition of the law. It is a rule we regard as almost elementary in character that a servant, when he engages in any employment is deemed, as a matter of law, to have contracted with reference to the ordinary hazards and risks incident to his employment, and to have assumed the same, and for any injury resulting therefrom without negligence on the part of the master he can not be held liable. If it were otherwise, then the master would be an insurer against injury to the servant while engaged in the business for which employed. The rule as stated must, we think, be deemed to have been settled in this jurisdiction by the prior decisions of this court. Chicago, B. & Q. R. Co. v. McGinnis, 49 Neb. 649, 68 N.W. 1057; Missouri N.E. R. Co. v. Baxter, 42 Neb. 793, 60 N.W. 1044; Malm v. Thelin, 47 Neb. 686, 66 N.W. 650; Norfolk Beet-Sugar Co. v. Hight, 59 Neb. 100, 80 N.W. 276; Omaha Bottling Co. v. Theiler, 59 Neb. 257, 80 N.W. 821. The rule of the assumption of the ordinary risks incident to an employment applies to infants as well as adults. Omaha Bottling Co. v. Theiler, supra; Pittsburgh, C. & St. L. R. Co. v. Adams, 105 Ind. 151, 162, 5 N.E. 187; Rock v....