St. Louis Cordage Co. v. Miller

Decision Date12 November 1903
Docket Number1,856.
PartiesST. LOUIS CORDAGE CO. v. MILLER.
CourtU.S. Court of Appeals — Eighth Circuit

William H. Biggs and Davis Biggs, for plaintiff in error.

M Kinealy and W. B. Kinealy, for defendant in error.

On February 13, 1902, Miss Mary Miller, an employee of the St Louis Cordage Company, while operating the lever of a forming machine in its factory, permitted her hand to slip from the handle of the lever in the revolving and engaging cogs of the gearing which propelled the machine, and lost one finger and a portion of another. She sued the defendant below, the Cordage Company, for negligence in that it had not covered its gearing as required by 2 Rev.St.Mo. 1899, Sec. 6433, and the company answered that the condition of the gearing was obvious and well known to the plaintiff, that the danger from it was apparent, and that she had assumed the risk of working near it in its exposed condition. The work of the forming machine was to make into rope the twine sisal and hemp from which that article is manufactured. These articles were fed into the machine by the operator. It was started and stopped by means of a lever within her reach. Hen this lever was pulled forward to start the machine its handle was about 8 inches from the engaging cogs which injured the plaintiff and when it was pushed back to stop it the handle was about 5 or 6 inches from them. The hemp and sisal were necessarily oily, and the handle of the lever was always greasy. Prior to December, 1901, the mashing cogs which injured the plaintiff had been covered, but there had been no covering upon them subsequent to that date. The plaintiff testified that she did not know that it was dangerous to run the gearing without covering. She was 20 years of age, had worked in factories for many months, and had been constantly employed in the factory of the defendant from July, 1901, until she was injured on February 13, 1902. She ordinarily tended a feeding machine, but by direction of the foreman frequently operated this forming machine 10 or 15 minutes at a time. She operated it in this way before the covering was removed from the cogs at Christmas, 1901, and every working day after that time until she was injured. She knew that the cogs had been covered, that they were uncovered at all times after December 25, 1901, and all the facts which have been recited. But she gave no notice to her employer that the gearing was exposed, and made no protest against its condition. Another young woman worked on another forming machine in the same room whose gearing was exposed in the same way during this time. On February 13, 1902, as the plaintiff was pushing the lever back to stop the machine, her hand slipped from its handle into the engaging cogs, which were in rapid motion, and was injured. The facts which have been stated were undisputed at the close of the trial, and they constitute all the material facts in this case. The court declined to instruct the jury to return a verdict for the defendant, and submitted the case to their consideration under a charge that 'the law on this subject is as follows: Even if you find that the plaintiff remained in the employ of the defendant with full knowledge of the fact that the gearing of the machine by which she was injured was not covered or guarded as required by the statute of Missouri which I have just read to you, yet if the risk incurred by her remaining there and performing the duties assigned to her with the unguarded gearing was not so imminent that persons of ordinary prudence under similar circumstances would have declined to incur it and would have refused to perform the work so assigned to them to do, then the plaintiff, remaining there at work, even with full knowledge of the situation, cannot be held to have so assumed the risk of the employment, or to have so contributed to her own injury as to preclude a recovery in this case. If, on the other hand, you find that the risk or danger attending the performing of the work assigned to the plaintiff by reason of the exposed gearing in question was so grave and imminent that persons of ordinary prudence under similar circumstances would have declined to go on with the work with the exposed gearing, then plaintiff, by so continuing to perform the work, must be held to have assumed all the risk attending it, and cannot recover in this case.'

The refusal of the court to peremptorily instruct the jury to return a verdict for the defendant, and the portion of the charge which has been quoted are assigned as errors.

Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

The defendant did not plead in this case that the plaintiff was guilty of contributory negligence. Its only defense was that the rapidly revolving cogs were seen and known by the plaintiff, that the danger from them was apparent, and that she assumed the risk of it. These are the questions, therefore, which the instruction to the jury presents: Are the risks from defective place of employment, appliances, and fellow servants which employees assume by entering and continuing in the service of a master with knowledge of the situation and its dangers and without complaint, limited to those risks the danger from which is so imminent that persons of ordinary prudence would not incur them? Or do the risks capable of assumption in this way include those less serious chances which servants of ordinary prudence would and do incur?

The charge of the court answered the first of these questions in the affirmative, and the second in the negative. It was, in effect, that the defense of assumption of risk and the defense of contributory negligence were identical in effect and coterminous in extent, that no servant in the exercise of due care can lawfully assume the risk of a defective place, defective machinery, or defective appliances, and that it is only where the danger from them is so grave that no prudent person would chance it that a servant can lawfully contract to take the chance of the injury which they may inflict upon him. This instruction was undoubtedly inspired by the opinion of the majority of this court in Southern Pac. Co. v. Yeargin, 109 F. 436, 442, 48 C.C.A. 497, 503, to which the writer never assented, and the following authorities are now cited in support of it: Hough v. Railway Co., 100 U.S. 224, 225, 25 L.Ed. 612; District of Columbia v. McElligott, 117 U.S. 621, 631, 6 Sup.Ct. 884, 29 L.Ed. 946; Northern Pac. R. Co. v. Herbert, 116 U.S. 642, 655, 6 Sup.Ct. 590, 29 L.Ed. 755; Goodlett v. Louisville & Nashville R. Co., 122 U.S. 391, 411, 7 Sup.Ct. 1254, 30 L.Ed. 1230; Northern Pac. R. Co. v. Mares, 123 U.S. 710, 712, 714, 715, 720, 8 Sup.Ct. 321, 31 L.Ed. 296; Kane v. Northern Central R. Co., 128 U.S. 91, 94, 9 Sup.Ct. 16, 32 L.Ed. 339; Snow v. Housatonic R. Co., 90 Mass. 441, 450, 85 Am.Dec. 720; Ford v. Fitchburg R. Co., 110 Mass. 240, 241, 242, 243, 261, 14 Am.Rep. 598; Patterson v. Pittsburg, etc., R. Co., 76 Pa. 389, 394, 18 Am.Rep. 412; Wuotilla v. Duluth Lumber Co., 37 Minn. 153, 155, 33 N.W. 551; Francis v. Railroad Co., 127 Mo. 658, 666, 672, 28 S.W. 842, 30 S.W. 129; O'Mellia v. Kansas City, etc., R. Co., 115 Mo. 205, 212, 218, 21 S.W. 503; Thorpe v. Missouri Pac. R. Co., 89 Mo. 650, 653, 2 S.W. 3, 58 AmRep. 120; Woods's Law of Master and Servant, Sec. 385; Buswell on Law of Personal Injuries, Sec. 207; Shearman & Redfield on Law of Negligence, Sec. 211.

There is an exception to the law of assumption of risk as well established as the rule itself. It is that, where a servant makes complaint to his master of a dangerous defect in his place of work or in the appliances furnished him, the risk of that defect is cast upon the master, and the servant is relieved from it for a reasonable time to enable the employer to remove it, unless the danger from the defect is so imminent that a person of ordinary prudence would not continue in the employment after the defect is discovered. Hough v. Railway Co., 100 U.S. 225, 24 L.Ed. 612. Of course, cases which fall under the exception are not governed by the rule, and the only defense remaining in such cases is that of contributory negligence. Laying aside the case of Southern Pac. Co. v. Yeargin, all the cases above cited fall within the exception, so that the doctrine of assumption of risk was not applicable to them, and the only question remaining in them was one of contributory negligence excepting the cases of Northern Pac. R. Co. v. Herbert, 116 U.S. 642, 653, 6 Sup.Ct. 590, 29 L.Ed. 755; Goodlett v. Louisville & Nashville R. Co., 122 U.S. 391, 411, 7 Sup.Ct. 1254, 30 L.Ed. 1230; Ford Fitchburg R. Co., 110 Mass. 240-243, 261, 14 Am.Rep. 598; Wuotilla v. Duluth Lumber Co., 37 Minn. 153, 155, 33 N.W. 551; and O'Mellia v. Kansas City, etc., R. Co., 115 Mo. 205, 212, 218, 21 S.W. 503; and in none of these cases, except O'Mellia v. Kansas City, etc., R. Co., 115 Mo. 205, 21 S.W. 503, and Wuotilla v. Duluth Lumber Co., 37 Minn. 153, 155, 33 N.W. 551, was the defense of assumption of risk insisted upon and discussed. The defense applied, considered, and determined in each of them was contributory negligence, and the distinction between the two defenses was not argued, considered, or determined. The opinions in these cases are not, therefore, determinative of the issue. In the opinions of the courts in O'Mellia v. Kansas City, etc., R. Co., 115 Mo. 205, 212, 218, 21 S.W. 503, Wuotilla v. Duluth Lumber Co., 37 Minn. 143, 155, 33 N.W. 551, and Thorpe v. Missouri Pac. R. Co., 89 Mo. 650, 653, 2 S.W. 3, 58 Am.Rep. 120, and in some of the text-books cited the two defenses of assumption of risk and contributory negligence are confused or treated as interchangeable, and it is either...

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