McCarthy v. Mulgrew

• Decision Date: 17 December 1898
• Citation: 77 N.W. 527,107 Iowa 76
• Parties: MCCARTHY v. MULGREW.
• Court: Iowa Supreme Court

107 Iowa 76

77 N.W. 527

MCCARTHY

v.MULGREW.

Supreme Court of Iowa.

Dec. 17, 1898.

Appeal from district court, Dubuque county; J. L. Husted, Judge.

Action at law to recover damages for injuries sustained by plaintiff, McCarthy, a servant of the defendant, in coming in contact with what is known as a “brake,” a machine used by bakers for the purpose of kneading dough. The negligence alleged is that the rollers of the brake were not properly guarded; that plaintiff, when injured, was a minor of about 18 years of age, in the employ of defendant as an apprentice; and that while at work at his trade, and while drawing a trow containing dough to the brake, in order that it might be kneaded, he slipped and fell against and onto the brake, his left arm passing in front of the rollers of the brake, which were three-fourths of an inch apart, and, being drawn into and between the same, was crushed, mangled, and torn, and plaintiff thereby permanently crippled and injured. It is further averred that the castors underneath the trow were out of repair, and in a defective and dangerous condition; that plaintiff did not know of their condition; and that, while rolling the trow towards the brake, the same suddenly stopped by reason of the defective castors, and he, losing his hold, was thrown against and onto the brake, as before stated. He further states that defendant negligently failed to supply the trow with handles or any other means of moving it. Further, he says that he was young and inexperienced at the work, and that his master neglected to inform him of the dangers connected therewith. The defendant denied all negligence; pleaded that the brake was of the kind usually and universally used in bakeries; that its rollers could not be guarded; that plaintiff knew of its condition, and, without objection or protest, used the same for three years or more prior to his injury; and that he thereby assumed the risk incident to its use, and waived any defects therein. Defendant further pleaded contributory negligence on the part of plaintiff, and assumption of risk and waiver in the use of the trow. On the issues thus joined, the case was tried before a jury, and, at the conclusion of plaintiff's evidence, the court directed a verdict for defendant. Plaintiff appeals. Affirmed.Matthew & Barnes and R. F. Jess, for appellant.

Henderson, Hurd, Lurd, Lenehan & Kiesel, for appellee.

DEEMER, C. J.

The alleged defective condition of the brake seems to be abandoned on this appeal, and the sole question with reference to this machine is whether or not defendant was negligent in not informing plaintiff of the dangers incident to its use. Counsel contend that, by reason of plaintiff's youth and inexperience, it was defendant's duty to warn him of the dangers of the brake. The rule upon which they rely has no application to the case, for the reason that the danger was so obvious and patent that his employer was under no obligation to inform him of it. The danger from the use of a machine with revolving iron rollers placed within three-fourths of an inch of each other is so apparent that any boy of fifteen years of age would see it. When one, without objection or promise of...