Mundhenke v. Oregon City Mfg. Co.

• Decision Date: 15 August 1905
• Parties: MUNDHENKE v. OREGON CITY MFG. CO.
• Court: Oregon Supreme Court

81 P. 977

47 Or. 127

MUNDHENKE v. OREGON CITY MFG. CO.

Supreme Court of Oregon

August 15, 1905

Appeal from Circuit Court, Clackamas County; T.A. McBride, Judge.

Action by Walter F. Mundhenke, a minor, by Ida M. Mundhenke, his guardian, against the Oregon City Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for the recovery of damages for a personal injury sustained by the plaintiff, a minor. He was at the time of the accident about the age of 16 years and 8 months. The injury of which he complains consists in the loss of parts of two fingers on the left hand. The defendant was engaged in operating a woolen mill, and the plaintiff was in its employ charged with the duty of carrying yarn which was in the form of bobbins and distributing it to the looms. The particular acts of negligence upon which plaintiff predicates the action are stated in the complaint in substance as follows: That the defendant carelessly and negligently placed the box used for receiving yarn or filling next to exposed gearing on the side of one of the weaving looms, which said gearing the defendant carelessly and negligently permitted to be exposed in a dangerous, defective, and unsafe condition; that the defendant knowingly, carelessly, and negligently allowed the floor of said room next to the box where the plaintiff was employed to carry yarn or filling to become oily and slippery, and in an unsafe and defective condition; that the plaintiff was inexperienced in the matter of his employment and unacquainted with the dangerous, defective, slippery condition of the floor, and of the defective and dangerous condition of said machinery, and of the dangers incident to said employment; that it was the duty of the defendant herein to instruct the plaintiff as to the dangers incident to and in connection with his said employment, and of the dangerous and slippery condition of said floor, and of the dangerous condition of said exposed gearing; that the defendant failed and neglected to instruct and inform plaintiff of the dangerous and slippery condition of said floor and of the dangerous and defective condition of said exposed gearing and because of such failure to so instruct plaintiff he was injured and damaged as hereinafter set forth; and that while plaintiff was so performing his duties as aforesaid, being engaged in putting said yarn or filling in the said box prepared by defendant, and by reason of defendant's negligence in allowing said floor to become oily and slippery and in allowing said gearing to be and remain exposed, and without fault on plaintiff's part, he slipped, and his hand came in contact with said exposed gearing, whereby he was injured--describing the injury. The answer joins issue with these alleged matters of negligence, and sets forth two separate defenses: (1) That the danger, whatever existed, was open and obvious, and that plaintiff assumed the risk; and (2) that he was himself negligent, and contributed to the injury. When plaintiff rested, defendant moved for a nonsuit which motion being denied, the trial proceeded, resulting in a verdict and judgment for plaintiff, and the defendant appeals.

Ralph W. Wilbur, for appellant.

C. Schuebel, for respondent.

WOLVERTON C.J. (after stating the facts).

It is first necessary to understand the nature of the machinery and the attending conditions before alluding to the facts touching the manner in which the accident occurred. At the end or side of the looms, facing on an aisle or passageway is a set of gearing, consisting of two cogwheels working into each other, the lower being much the larger. The point of contact of the gearing is from two feet to two feet six inches above the floor. Immediately at the end of the looms boxes were placed for receiving the yarn or filling. These stood against the lower cogwheel of the gearing, and when being filled the person doing the work would naturally stand in the passageway in front of the box and opposite the gearing, so that the width only of the box would intervene between him and the gearing, which was otherwise exposed, without guard or other protection to prevent contact with it. The plaintiff testified that he was carrying filling for the weavers, and had been so occupied for three months; that neither the foreman of the mill nor any one else had instructed or cautioned him relative to the danger of coming into contact with the machinery; that he slipped, and was caught in the cogwheels of the loom, and his fingers were crushed. Describing the incident further, he says: "I slipped with my left foot, and threw up my hand so I wouldn't fall, as a person naturally will throw out his hand when he slips;" that he was taking the bobbins from the basket in which he had carried them to the box and putting them into the box, which was full, or nearly so, when his foot slipped, he having all his weight on one foot at the time; that the floor was "greasy and slippery"; that he had slipped and fallen upon it before, and that he always tried to do his work carefully; that neither the foreman nor any one else had cautioned him to be careful in standing about the boxes, or that he might slip upon the floor; that the only instructions given him were as to where to get the yarn and where to deposit it, and that nothing was said to him about the danger of slipping and falling or of getting his fingers in the cogwheels. On cross-examination he testified that he had about 20 boxes to fill altogether, and further, as interrogated: "Q. You saw those cogs, you knew where they were? A. Yes, sir. Q. You saw those when you first went there? A. Yes, sir. Q. Did you see them as they came together in the mesh--right where they came together--those cogs? A. Yes, sir. Q. Did you know at that time that if you would get your fingers caught in them you would get hurt? A. Anybody would know you would get hurt if you would catch your fingers in there, but I don't think anybody was intending to get hurt there, though. *** Q. You knew it would be dangerous if you would get your fingers in there? A. If you would think about it, yes, sir. *** Q. What was the condition of this floor when you went there, along that aisle and about this loom? A. The same as it always is. Q. Has it always been that way? A. Yes, sir. Q. Just as it was to-day? A. If they didn't clean it up right away, it was. *** Q. You say you had slipped a number of times there in the mill. Say how soon after you went there was the first time you slipped? A. I might have slipped the same day. *** Q. How often did you slip? A. I couldn't say how often." The witness further testified that the company swept and cleaned the floor one a week, on Saturdays; that the accident occurred on Friday, and that the floor grew more slippery toward the end of the week than it was at the beginning, and that it becomes oilier when it has not been swept for a long time. This...