Singer v. Swartz.

• Decision Date: 01 May 1916
• Docket Number: No. 1803.,1803.
• Citation: 22 N.M. 84,159 P. 745
• Court: New Mexico Supreme Court
• Parties: SINGERv.SWARTZ.

22 N.M. 84

159 P. 745

SINGER

v.SWARTZ.

No. 1803.

Supreme Court of New Mexico.

May 1, 1916.On Motion for Rehearing, Aug. 10, 1916.

Syllabus by the Court.

The master owes the duty to the servant to exercise reasonable care and diligence to furnish him a safe place to work, as well as safe instrumentalities with which to do the work.

Under the circumstances of this case, held, that it was the duty of the master to adjust the safety roller on the laundry mangle so as to minimize the danger of injury to the operators thereof.

The servant assumes all the ordinary risks incident to employment, but not the extraordinary risks, unless he knew and appreciated the same.

Where the evidence is of such a character that the proper inference to be drawn from it, as to the assumption of risk by the servant, is a question with respect to which different opinions may not unreasonably be formed, whether the servant assumed the risk or not is a question for the jury.

Where the servant is a person of immature years, the cases in which the court may instruct the jury as a matter of law that the servant assumed the risk is much more limited than in cases where the servant is a person of mature years.

Appeal from District Court, Curry County; John T. McClure, Judge.

Action by Lena Singer, a minor, by J. H. Singer, her father and next friend, against W. F. Swartz. From a judgment for plaintiff, defendant appeals. Affirmed.

Where the servant is a person of immature years, the cases in which the court may instruct the jury as a matter of law that the servant assumed the risk is much more limited than in cases where the servant is a person of mature years.

H. D. Terrell, of Silver City, for appellant.

Harry L. Patton and A. W. Hockenhull, both of Clovis, for appellee.

PARKER, J.

This is an action brought in the district court of Curry county by Lena Singer, a minor, by her father as next friend, against W. F. Swartz, to recover compensation for injuries alleged to have been received by her while operating a power driven steam mangle in the laundry of appellant.

[1] 1. Thirteen errors are assigned by appellant, the first and most important of which involves the law of assumption of risk. Appellant contends that at the time of the accident the appellee was a bright and intelligent girl; that she had previously been employed in the laundry business; that she was sui juris, and knew and appreciated that in the event her hands or fingers passed into the mechanism of the mangle she would sustain severe injuries, and therefore she assumed the risk attendant upon the operation of said machine. A motion for a directed verdict on this ground was made by appellant at the close of appellee's case in chief, which was denied by the court.

As a general rule, it may be stated that among the primary duties of the master is the duty to exercise reasonable care and diligence to furnish the servant with a safe place to work, as well as with safe instrumentalities with which to do the work. 1 Bailey, Personal Injuries (2d Ed.) § 66 et seq.; 2 Cooley on Torts, p. 1102. In 3 Labatt's Master & Servant, § 898, it is said that the duties of the master arise out of the contract of employment, and are limited to the implications arising therefrom, viz., to see that suitable instrumentalities are provided, which includes servants, machinery, apparatus, premises, etc., and to see that those instrumentalities are safely used. At section 902 of the same work and volume it is said that there is no exception to the said rule, and that when a case is made showing the existence of the master's culpability with respect to those duties, which duties are cast upon the master by virtue of the policy of the law, a prima facie right to indemnity exists in favor of the servant. Therefore the first question to be determined is whether or not the master has committed an act amounting to negligence with regard to these primary duties. Dressler, Employer's Liability, §§ 82, 83.

[2] The complaint alleges negligence on the part of the appellant: First in failing to provide a cut-off switch at a place where it might be used by one actually operating the mangle; and, second, in failing to adjust the safety roller on the machine. The first charge of negligence has been disposed of by the jury, which found that appellant was not culpable in that respect. The machine referred to is a large power driven machine, used and built principally for the purpose of ironing clothing. It consists of four metal revolving rollers, attached to either side of a metal frame. The rollers are padded with fabric, and they revolve over a metal ironing table of concaved shape, which is heated by means of steam pipes. The machine was equipped with a wooden roller, called a safety roller, placed in front of the first metal revolving roller, which was adjustable and was intended to minimize the danger of injury in the actual operation of said machine. On the day of this accident the safety roller was so adjusted that it hung about an inch and a half above the ironing table. While appellee was feeding a thin dresser scarf into the machine, her fingers passed beneath this safety roller, and her hand was drawn into the mechanism of the machine and severely injured. Her injuries are permanent. At this time she was between 13 and 14 years of age, and had worked for appellant in his laundry in 1911 irregularly for about a month, and regularly thereafter for about six weeks prior to the day the accident befell her. She had operated the mangle at different times, but was not a mangle girl, as appellant characterizes her, but a general employé of the plant. She testified that she knew she would be injured should her hands or fingers pass into the mechanism of the machine, but that she never realized the exceptional danger in operating the machine, nor had she ever been instructed concerning its operation or the exceptional dangers attendant thereon. She admitted that the wife of appellant had told her to be careful when operating the machine, but that this was the extent of warning she had received. The conclusion reached from the evidence of the appellee's case is that, had the safety roller been properly adjusted on this occasion, appellee would not have sustained injury. The appellee testified that she had never adjusted the safety roller, nor had she ever seen it adjusted by any one else, and that, while she never particularly noticed its location, she believed that it was in the same condition at the time of the accident that it had been since she had worked for appellant. While it does not affirmatively appear in the case made by appellee that the duty of adjusting the safety roller was upon appellant, it is a fact, appearing in the case made by appellant, that he considered it his duty to keep this roller in proper condition. However, it makes but little difference as to this, because the law required appellant to keep this roller adjusted as long as it remained a part of the machine. Thus, in Stager v. Troy Laundry Co., 38 Or. 480, 63 Pac. 645, 53 L. R. A. 459, the court said that, the appellant having furnished an appliance on a mangle for the protection of the operator (a guard plate), it was the duty of the master to see that it was properly adjusted, citing Woods v. Railroad Co., 11 App. Div. 16, 42 N. Y. Supp. 140. See, also, Quinn v. Electric Laundry Co., 155 Cal. 500, 101 Pac. 794, 796, 17 Ann. Cas. 1100. Under the facts of this case failure to adjust the safety roller constituted actionable negligence on the part of the appellant.

[3] The next question is, Did appellee assume the risk of operating this machine when the safety roller was improperly adjusted? Every risk which the employment still involves after the master has done everything he is bound to do is assumed by the servant if the latter knew and appreciated the same. 3 Labatt's Master and Servant (2d Ed.) § 895. The section last referred to, together with sections 894 and 1169, indicates that wherever the risk is caused by the negligence of the master, the same is not an ordinary one, but an extraordinary one, and as a general rule such risk is not assumed by the servant, because the assumption of such risks was not contemplated by the contract of employment; the contract of employment impliedly providing that only those risks which naturally attend the employment after the master has fulfilled his implied duties should be assumed by the servant. See, also, 2 Bailey, Per. Inj. § 373; 2 Cooley on Torts, p. 1102; Dressler, Employer's Liability, § 88. But the doctrine of assumption of risk has been referred to in cases decided by this court. In Van Kirk v. Butler, 19 N. M. 597, 145 Pac. 129, this court, speaking through Mr. Justice Hanna, said:

“An ‘extraordinary risk,’ in the sense in which we use this term, is not one which is uncommon or unusual, in the sense that it is rare, but is one that arises out of unusual conditions, not resulting in the ordinary course of the business, as, by reason of the master's negligence.”

Tested by the rule last quoted and what is contained in the text hereinabove referred to, the risk involved in this case occasioned by the negligence of the master in failing to properly adjust the safety roller, was an extraordinary one, and, in the absence of certain other facts, such risk was not assumed. The general rule being that extraordinary risks are not assumed by the servant for the reasons stated, the qualification or exception thereto should be noted, viz., that such risks are assumed if the servant knew and comprehended the same. In Thayer v. D. & R. G. R. R. Co., 154 Pac. 691, this court held that the servant assumes all the ordinary risks incident to the service, but not the extraordinary risks, save in those cases where such risks were known to and comprehended by the servant. Appellant argues that the danger of operating this mangle machine was actually known to and appreciated by...