Haines v. Spencer

• Decision Date: 27 January 1909
• Docket Number: 11-1908.
• Citation: 167 F. 266
• Parties: HAINES v. SPENCER.
• Court: U.S. Court of Appeals — Third Circuit

167 F. 266

HAINES v. SPENCER.

No. 11-1908.

United States Court of Appeals, Third Circuit.

January 27, 1909

[Copyrighted Material Omitted]

Malcolm G. Buchanan, for plaintiff in error.

John J Crandall, for defendant in error.

Before GRAY and BUFFINGTON, Circuit Judges, and ARCHBALD, District judge.

ARCHBALD District Judge.

The plaintiff was injured by having her hand drawn into a mangle at which she was working. It was caught, as she says, by one of the towels which she was putting through the machine which the wind, blowing in through the open window, wrapped around her hand before she knew it. It is possible that she was inattentive, as the wind blew the towel away from her hand and not towards it. But that was for the jury. Her story is not so improbable that we can lay hold of it. The negligence charged is in not having a protecting guard bar, as well as means by which to promptly throw off or reverse the power, by which the accident might have been averted. There was such a bar for the machine, but it sagged, and on complaint by the plaintiff to the defendant, her employer, he referred her to Lehman, the engineer, who had charge of the machinery, who promised to fix it, and at the time of the accident had removed it for the purpose of doing so, telling her to go on with her work and he would bring it back shortly. It was taken off Tuesday afternoon, and had not been returned 24 hours later, when the accident occurred, the plaintiff keeping at work meantime without it, relying, as she says on the promise which had been made her.

It was held by the Supreme Court of New Jersey, where the action was originally brought, that Lehman in his capacity as engineer had no authority to speak for the defendant, so as to give the assurance and direction which the plaintiff relied on. Spencer v. Haines, 74 N.J.Law, 13, 64 A. 970. But the evidence is different now, the plaintiff having testified that, upon speaking to the defendant about the condition of the guard bar, he referred her to Lehman as one who would attend to it for her, which would seem to be sufficient to clothe him with authority. Notwithstanding this, however, the jury were instructed at the trial in the court below that Lehman was not authorized to speak for the defendant, and that what he said was immaterial, eliminating that as an issue. This favored the defendant, and so, of course, is not assignable for error. But if adhered to, the plaintiff clearly has no case, as the machine, except as to the guard bar, remained in exactly the same condition as when she went to work at it, and the other defects, if any, were obvious; the sole right to recover having thus to be based on the assurance given by Lehman, by which she was led to keep on with her work awaiting the return of the guard bar, assuming, of course, that the machine was not reasonably safe without it. The charge of negligence, in other words, is necessarily confined to the appliance with regard to which the assurance was given, and is not to be extended to other defects as to which there was no complaint and no promise, at least to the extent that the danger from them was obvious. It particularly cannot be predicated on the absence of means by which the machine could be thrown in and out of gear by the operator, by foot or hand, while standing between the ends of the machine, without going around or reaching over it, on which stress is laid and where the court below put it. This, if a defect, was a patent one, the danger from which, whether appreciated or not, was obvious, as to which the plaintiff, being a mature young woman, and having worked at the machine for nearly four months without complaint, must be taken to have been content, assuming whatever risk was involved in it. 'Where a defect is known,' says Mr. Justice Day in Choctaw, etc., R.R. v. McDade, 191 U.S. 68, 24 Sup.Ct. 25, 48 L.Ed. 96, 'or is so patent as to be readily observed by him, he cannot continue to use the defective apparatus, in the face of knowledge and without objection, without assuming the hazard of such a situation. In other words, if he knows of a defect, or it is so plainly observable that he must be presumed to know of it, and continues in the master's employ without objection, he is taken to have made his election to continue in the employ notwithstanding this defect, and in such case cannot recover. ' This is emphasized by the recent case of Butler v. Frazee in the Supreme Court, 211 U.S. 459, 29 Sup.Ct. 136, 53 L.Ed. . . . , which is so remarkably like the one in hand that we are moved to quote at large from it. The plaintiff there, as here, was employed at a mangle in a steam laundry, her duties being to spread the clothes to be ironed on a narrow feed board extending in front of the revolving cylinders, and guide them forward into them. For the greater safety of the operator the machine was equipped with an adjustable bar or finger guard, extending from side to side, and set at the height of an inch or two, according to the thickness of the material to be ironed. On the occasion in question the plaintiff's hand was caught as she was feeding in a tablecloth. It was shown that the feed board was loose, permitting the fabric which was to be laundered to drop between it and the cylinder, and there was evidence that this wrinkled it, which the plaintiff, at the time when her hand was caught, was endeavoring to remedy. It was also contended in explanation of the accident, that the guard bar was set too high, allowing the plaintiff's hand to be drawn into the cylinders. But, notwithstanding this, it was held that she had assumed the risk, and that a verdict was rightly directed against her. 'One who understands and appreciates the permanent conditions of machinery, premises, and the like,' says Mr. Justice Moody, 'and the danger which arises therefrom, or by the reasonable use of his senses, having in view his age, intelligence, and experience, ought to have understood and appreciated them, and voluntarily undertakes to work under those conditions and to expose himself to those dangers, cannot recover against his employer for the resulting injuries. ' It is true, as was said by this court in Blumenthal v. Craig, 81 F. 320, 26 C.C.A. 427, that a defect in a machine, and the risk of operating it when defective, are not necessarily the same, and that the risk may not be obvious, although the defect may be. Or, as it is put by Mr. Justice Moody in the case referred to:

(Even) 'where the elements and combinations out of which the danger arises are visible, it cannot always be said that the danger itself is so apparent that the employe must be held, as a matter of law, to understand, appreciate, and assume the risk of it. * * * The visible conditions may have been of recent origin, and the danger arising from them may have been obscure. In such cases, and perhaps others that could be stated, the question of the assumption of the risk is plainly for the jury. But where the conditions are constant and of long standing (as he takes pains to add), and the danger is one that is suggested by the common knowledge which all possess, and both the conditions and the dangers are obvious to the common understanding, and the employe is of full age, intelligence, and adequate experience, and all the elements of the problem appear without contradiction from the plaintiff's own evidence, the question becomes one of law for the decision of the court.'

Commenting upon the facts by which the case was brought within the latter class, it is further said:

'The plaintiff was a person of mature years, intelligence, and of adequate experience. She had worked for some months upon this particular machine, and during that time it was always in exactly the same condition in which it was upon the day of the injury. The elements out of which the danger arose were plainly visible to her. The employer had no duty, statutory or otherwise, to use a rail to guard against so obvious a danger as that arising out of two cylinders in contact with each other and seen to be revolving inwardly. * * * We see nothing in the manner of the adjustment of the guard rail which constituted an allurement or was calculated to blind the plaintiff to the danger. The adjustment of the parts of the machine was continually before her eyes. The danger of being drawn between the cylinder and the rollers by contact with the cylinder was illustrated to her every minute of the day by the drawing in of the clothes to be ironed by contact with the revolving cylinder. The distance between the guard rail and the feed board was constant, and its relation to the thickness of her hand was apparent. She must have understood that if her hand became inextricably entangled with the clothes, as seems from the rather vague testimony of the plaintiff was the case here, it would be drawn

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