Stephens v. McGuire

• Decision Date: 24 January 1959
• Docket Number: No. 41132,41132
• Citation: 69 A.L.R.2d 1221,184 Kan. 46,334 P.2d 363
• Parties: , 69 A.L.R.2d 1221 Mildred V. STEPHENS, Appellee, v. William B. McGUIRE, d/b/a McGuire's Help Self Laundry, Appellant.
• Court: Kansas Supreme Court

Page 363

334 P.2d 363

184 Kan. 46, 69 A.L.R.2d 1221

Mildred V. STEPHENS, Appellee, v. William B. McGUIRE, d/b/a McGuire's Help Self Laundry, Appellant.

No. 41132.

Supreme Court of Kansas.

Jan. 24, 1959.

Syllabus by the Court.

1. In this state contributory negligence is generally an affirmative defense to be pleaded and proved by the defendant.

2. Contributory negligence may be raised by a demurrer to plaintiff's petition only where the petition alleges facts which clearly convict plaintiff of a want of due care which is shown to have been the proximate cause of plaintiff's injury.

3. In a case in which plaintiff sued to recover damages for personal injuries alleged to have been suffered because she caught her fingers in the rollers of the wringer of an electric washing machine on which the releasing safety device was alleged to have been defective at the time said machine was hired to plaintiff for use at a self-service laundry, the mere allegation that plaintiff caught her fingers in the wringer was not an admission of contributory negligence rendering the petition insufficient as against a demurrer on either the theory of res ipsa loquitur or upon allegations of specific negligence.

Max Wyman and Don Wyman, Hutchinson, were on the briefs for appellant.

Abraham Weinlood, Bill R. Cole, Kenneth F. Ehling, D. Stewart Oswalt and John H. Shaffer, Hutchinson, were on the brief for appellee.

JACKSON, Justice.

The appellee sued the appellant in the court below alleging she received personal injuries in the use of an alleged defective electric washing machine furnished to her at appellant's self-service laundry. Appellant appeals from the order of the district court overruling a demurrer to appellee's amended petition.

The pertinent parts of the amended petition are contained in four paragraphs thereof which are set out below:

'I.

'At all times material hereto the Defendant, William B. McGuire, owned and operated a so-called 'self service' laundry at 531 East Fourth Street, Hutchinson, Kansas, under the style of McGuire's Help Self Laundry'. In such business the Defendant offered for hire to each of his customers the temporary use of the premises above described together with a washing machine and a clothes wringer, such appliances to be operated personally by the customer. Each wringer was an electric power driven machine which compressed the water out of wet clothes by means of two rollers horizontally arranged so that they were forced tightly against each other. The wet clothes were fed into the wringer by being pressed against the rollers while such rollers were in motion so that the wet articles were caught and drawn between the rollers. At the top of the framework holding the rollers in place was a safety device by means of which the rollers could be readily disengaged and the pressure of the rollers against each other or any article or object compressed between them could be released. Such safety device was for the protection of users of the machine against injury to their persons, and the wringer was a potentially dangerous appliance if the safety device was not in good working order and repair.

'II.

'On or about November 10, 1956, Plaintiff entered the aforesaid business establishment of Defendant, as a customer, and arranged, for a fee, for the use of one of the washing machines and one of the wringers. She assumed, and had a right to assume, that the particular wringer assigned to her use would be in good repair and that all switches and safety devices would be in good operating order. Thereafter she laundered the clothing and articles which she has brought with her; and then was using the wringer for its intended purpose of squeezing excess water from such articles. In the course of introducing and feeding some of the clothing through the wringer the fingers of her left hand were caught between the rollers and her hand was drawn into and through the wringer. The Plaintiff immediately and repeatedly attempted to operate the safety device referred to in the foregoing with her other hand, for the purpose of disengaging the rollers and releasing her hand; but notwithstanding such efforts on her part the safety device failed to operate and failed to release her hand, so that not only her hand but her left arm was drawn into and through the rollers to her elbow. At that point the bend of plaintiff's arm prevented her elbow and upper arm from passing through the wringer but the lower roller continued to rotate against her arm. As soon as Plaintiff realized that the safety release would not operate she attempted to stop the rotation of the rollers by means of the stop and start switch but such switch failed to operate. Plaintiff then attempted to reach the switch controlling the electric power to the motor, but such switch was beyond her reach from the position in which she was held by the wringer. The lower roller continued to turn against Plaintiff's arm for a considerable period of time, estimated by Plaintiff to be two or three minutes, and until the person employed or assigned by Defendant to be in charge of said premises and equipment arrived and turned off the power, and thereafter, by use of considerable force, disengaged Plaintiff's arm.

'III.

'At the time when said wringer was placed at Plaintiff's disposal, the same was defective or out of repair with respect to the safety device and to the starting switch in that the safety release and the switch would not operate when Plaintiff's hand and arm were drawn into the wringer. Such defective condition and state of disrepair were unknown to the Plaintiff; but Defendant and his servants knew, or should have known, of such defective conditions of said wringer by proper inspection. The Defendant and his servants and employees were guilty of negligence toward Plaintiff which was the proximate cause of the damages and injuries to Plaintiff hereinafter set forth, in

'A. Failing to properly inspect and check the wringer, and especially the safety device, prior to its being furnished to Plaintiff.

'B. Furnishing a wringer on which the safety device and switch were defective and out of repair.

'C. Plaintiff further alleges that the specific defects in the wringer which resulted in the failure of the safety device and switch thereon to operate, are unknown to Plaintiff; that Plaintiff had no control over the care, inspection and maintenance of said wringer; but that the Defendant, his agents, servants and employees at all times had full control over said wringer and all its parts, including the right of inspection and repair; and that the safety device and switch on the wringer would have operated safely, and no injury would have resulted to Plaintiff if the Defendant, his servants, agents and employees had been in the exercise of due care under the circumstances; and that such a failure of the safety device and switch does not occur in the normal experience of men, in the absence of negligence on the part of those in control of such equipment. That Defendant and his agents, servants and employees were guilty of negligence toward Plaintiff in respects other than those specified in A and B above, which other negligence, by reason of the absence of knowledge and control over said wringer, Plaintiff is unable to further specify, but which negligence is known or ought to be known to Defendant, his agents, servants and employees by reason of their exclusive knowledge and control of said wringer.

'IV.

'As the proximate result of all of the foregoing, Plaintiff received personal injuries which were the sole and proximate result of the negligence of Defendant in failing to properly inspect and check the equipment and in furnishing for the use of Plaintiff such defective equipment and equipment out of repair, on which the safety device and switch would not operate.'

The amended petition continued by alleging damages and prayed for judgment in the sum of $20,569.37.

While appellant has appealed from an intermediate motion to strike as well as from the order overruling his demurrer, only one question is argued in the brief which apparently has to do with the order on the demurrer. At any rate, it would seem that the same question would arise on the motion to strike. The contention of appellant seems to be that appellee's amended petition fails to state a cause of action on the theory of res ipsa loquitur.

Appellant's actual argument comes down to the contention that the amended petition shows contributory negligence upon the part of the appellee in allowing her fingers to be caught in the wringer and that therefore, the doctrine of res ipsa loquitur has no application. Of course, if contributory negligence appears, not only is the petition insufficient on the theory of res ipsa loquitur, but it would also be insufficient on the theory of specific allegations of negligence.

Moreover, contributory negligence has...