Mundle v. Hill Manuf'g Co.

• Decision Date: 10 May 1894
• Citation: 86 Me. 400,30 A. 16
• Parties: MUNDLE v. HILL MANUF'G CO.
• Court: Maine Supreme Court

30 A. 16

86 Me. 400

MUNDLE

v. HILL MANUF'G CO.

Supreme Judicial Court of Maine.

May 10, 1894.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Action by Laura Mundle against the Hill Manufacturing Company to recover damages for personal injuries caused by defendant's negligence while plaintiff was in its employ.There was a verdict for plaintiff, and defendant brings exceptions, and moves for a new trial.Exceptions sustained.

F. W. Dana and W. F. Estey, for plaintiff.

Wallace H. White and Seth M. Carter, for defendant.

FOSTER, J.The plaintiff had been in the employ of the defendant as an inspector of cloth for about three months at the time of the accident.In the performance of her work she had occasion to pass from her Inspecting table to the stitcher, a distance of about 20 feet, across the room, from 100 to 125 times a day.While walking across the floor she stuck a splinter from the floor into her foot, for which injury this action was brought, and the jury awarded her damages in the sum of $500.

The undisputed facts gathered from the plaintiff's own story are that she knew the condition of the floor, had walked on it for three months, and had noticed that it was not what it should be, and was always very careful; that she considered it dangerous, and was always very careful in walking back and forth; that she had it in mind all the time; that there was no occasion for her to hurry, and that she could go back and forth from the inspecting table to the stitcher carefully and leisurely; that the room was well lighted; that the floor over which she had occasion to pass was not covered up or concealed in any way, and was in about the same condition at the time of the accident as when she began to work there; that the wearing and splintering of it was occasioned by iron trucks heavily loaded with cloth passing over it many times a day; that she never spoke to the overseer, or made any complaint to any one, about the condition of the floor; and that she was not induced to remain under any promise of a change or repair.It also appeared that the plaintiff, at the time of the accident, had on a shoe torn across the toe, and that the splinter entered her foot at the point where the shoe was torn.

The defendant contended that the plaintiff, having continued to work during all this time with full knowledge of the condition of the floor and the uses to which it was put, without making any complaint or calling the attention of the overseer or any other person representing the defendant to the alleged dangerous condition, and not being induced to continue in her work by any promise that a change would be made, assumed the risks involved, among which would be the liability of her feet being injured by splinters.

The jury, after having been fully instructed, and after deliberating upon the case for some time, returned into court and asked the following question:

"If the plaintiff went on to this floor seeing all the danger there was about it,—if she saw everything there was there, and the condition of the floor,—and continued to work upon it, if the floor was faulty, would she be entitled to recover?"

Thereupon, in response to this inquiry, the following instruction was given by the court:

"That is a question which has often been before the courts, and in some of the states it has been held that such knowledge is a bar to a recovery.But we have not gone so far as that in this state.We hold that it is possible for one to continue in the service of another after knowing that the premises or some of the machinery is dangerously and negligently defective, and that such knowledge is not necessarily a bar to a recovery for an injury occasioned by such a defect.Such knowledge is a circumstance to be weighed by the jury in determining whether or not the person injured was guilty of contributory negligence, but is not necessarily a bar to a recovery.If you think that, under all the circumstances, the plaintiff was excusable,—that is, that she was not guilty of contributory negligence,—and you also find that the floor was defective and dangerous, you will be justified in finding a verdict in her favor.It is requiring a good deal of a girl (or any one) who is obliged to work for a living, and has a good position, to leave it, or continue in it at her own risk, simply because she knows of some defect carelessly or negligently left by her employer.She has a right to assume that in due time he will make the necessary repairs, and upon that assumption she may work on; and if, in so doing, there is no want of ordinary care on her part, mere knowledge of the defect is not a bar—not a legal bar—to a recovery for an injury occasioned by the defect.But such knowledge is a circumstance to be weighed by the jury in determining whether or not the person injured was guilty of contributory negligence; and upon that question their judgment must control."

To this instruction the defendant excepts, and the question is as to its correctness, as applied to the undisputed facts in this case, and those assumed in the question.

In this connection we feel that the instruction, as given, must have misled the jury, and their attention should have been called to the distinction between a right of recovery being barred by contributory negligence, and by the voluntary assumption of a known and appreciated risk or danger.

The question presupposed both a defective floor and a full knowledge on the part of the plaintiff of all danger incident to its use, and called for instructions as to whether the plaintiff could recover if she knew and appreciated the danger, and voluntarily assumed the risk.The instructions wholly omitted to deal with this aspect of the case, and were limited to the question of contributory negligence, thereby leaving the jury to determine whether such knowledge should preclude the plaintiff from recovering on the ground of contributory negligence alone, and not by reason of her voluntarily assuming a risk or danger fully known and appreciated by her.

Assuming the risks of an employment is one thing, and quite an essentially different thing from incurring an injury through contributory negligence.Generally, it is sufficient, in actions for the recovery of damages, to give instructions as to the effect of contributory negligence on the part of the plaintiff.But, when the question arises as to the effect of knowledge and the assumption of risks on the part of the plaintiff, something more is required.As was said in Miner v. Railroad, 153 Mass. 398, 26 N. E. 994: "The principle that one may be debarred from a recovery when he voluntarily assumes the risk is not identical with the principle on which the doctrine of contributory negligence rests, and in proper cases this ought to be explained to the jury.One may, with his eyes open, undertake to do a thing which he knows is attended with more or less peril, and he may, both in entering upon the undertaking and in carrying it out, use all the care he is capable of; but whether or not he thereby assumes the risk may depend on other circumstances."

The difficulty often arises in determining whether the risk has been voluntarily assumed.One does not voluntarily assume a risk, within the meaning of the rule that debars a recovery, when he merely knows there is some danger, without...