Tuckett v. American Steam & Hand Laundry

• Citation: 30 Utah 273,84 P. 500
• Decision Date: 13 February 1906
• Docket Number: 1627
• Parties: TUCKETT v. AMERICAN STEAM & HAND LAUNDRY. [*]
• Court: Supreme Court of Utah

84 P. 500

30 Utah 273

TUCKETT v. AMERICAN STEAM & HAND LAUNDRY. ^[*]

No. 1627

Supreme Court of Utah

February 13, 1906

APPEAL from District Court, Salt Lake County; T. D. Lewis, Judge.

Action by Matilda Tuckett against the American Steam & Hand Laundry. From a judgment of nonsuit, plaintiff appeals.

REVERSED.

Powers Straup & Lippman for appellant.

APPELLANT'S POINTS.

In Lee v. Railroad Co., 101 Cal. 118, the Supreme Court of California, respecting the risk of an employee, said "It is not only necessary that an employee should know of the defect in the machinery in order to hold that he assumed the risk, but the danger arising from the defect must also be known or reasonably apprehended by him." So in Railroad Co. v. Herbert, 116 U.S. 642, Mr. Justice Field said: "The servant does not undertake to incur the risks arising from the want of sufficient and skillful colaborers, or from defective machinery or other instruments with which he is to work. His contract implies that in regard to these matters his employer will make adequate provisions that no danger will ensue to him. This doctrine has been so frequently asserted by courts of the highest character that it can hardly be considered as any longer open to serious question." (Shear & R., Neg., sec. 92; Harrison v Railway Co., 7 Utah 523; Pidcock v. Railway Co., 5 Utah 612; Railroad Co. v. Baugh, 149 U.S. 368; Huhn v. Railway Co., 92 Mo. 440; Settle v. Railway Co., 127 Mo. 336; Chapman v. Southern P. Co., 12 Utah 30; Hawley v. Railway Co., 82 N.Y. 370.)

Sutherland, Van Cott & Allison for respondent.

RESPONDENT'S POINTS.

The condition of this machine was entirely open and obvious, and plaintiff was bound to know it, and the danger arising from its operation was one of the assumed risks of her employment. (Gilbert v. Guild. 144 Mass. 601, 604; Upthegrove v. Jones & Adams Coal Co. [Wis.], 96 N.W. 385; Kupkofski v. Spiegel [Mich.], 97 N.W. 48; Keenan v. Waters [Penn.], 37 A. 342; Helmke v. Thilmany, 107 Wis. 216; Coyle v. Iron Company, 47 L.R.A. 147; Egnor v. Lumber Co., 92 N.W. 242; Blom v. Yellowstone Association, 90 N.W. 397; Lumber Co. v. Mooney, 42 P. 952; Chair Co. v. Fuelner, 63 N.E. 239; Packing Co. v. Marcan, 106 F. 645; French v. Ry. Co., 63 P. 1108; Higgins Carpet Co. v. O'Keefe, 79 F. 900; Cook v. Mining Co., 12 Utah 51; McGlynn v. Brodie, 31 Cal. 376; Fritz v. Electric Light Co., 18 Utah 493; Sweet v. Coal Company, 9 L.R.A. 861; Perry v. Schmidt, 116 F. 627.)

The rule of assumption of risks applies not only to those existing at the time of the employment, but to those subsequently arising, of which the servant has knowledge or is bound to have knowledge. (Sowden v. Company, 55 Cal. 443; Furnace Co. v. Abend, 107 Ill. 51; 2 Thompson on Negligence [Old Ed.], 1008; Railway Co. v. Barber, 5 Ohio State 541, 564.)

The order of the master to perform the service is not material where it appears that the servant had knowledge, actual or constructive, of the risk, and encountered it without coercion. (1 Thompson's Neg., sec. 56; 1 Labatt, Master & Servant, sec. 438; Kean v. Copper Mills, 66 Mich. 277; Graves v. Brewer, 38 N.Y.S. 566; Anderson v. Winston, 31 F. 528; Hogan v. Railway Co., 53 F. 519; Anderson v. Lumber Co., 49 N.W. 664.)

We also insist that, under the circumstances of the case, she was guilty of contributory negligence, notwithstanding any direction which she may have received. (1 Labatt, Master & Servant, sec. 442; Bradshaw v. Railway Company, 21 S.W. 346; Jones v. Railway Company, 31 S.W. 706; Robinson's Administrator v. Dinning, 30 S.E. 442; Davis v. Railway Company, 18 So. 173; Railway Company v. McGraw, 45 P. 385; Roul v. Railway Company, 11 S.E. 558; Lee v. Railroad Company, 101 Wis. 352; Badger v. Janesville Cotton Mills, 95 Wis. 599; Groth v. Thoman, 110 Wis. 499, 494; Stafford v. Railway Co., 85 N.W. 1036; Maryland v. Railway Co., 16 A. 623; Cleveland etc. R. Co. v. Coffman, 64 N.E. 233.)

HOWELL, District Judge, delivered the opinion of the court. BARTCH, C. J., and McCARTY, J., concur.

OPINION

HOWELL, District Judge

STATEMENT OF FACTS.

The plaintiff brought this action to recover damages from the defendant for personal injuries alleged to have been sustained by her while working at a shirt-bosom ironer in a laundry operated by defendant and as a result of its negligence. The complaint, after alleging that the defendant was at the time of the accident and the bringing of the action a corporation organized and existing under the laws of the state of Utah and engaged in the business of operating a laundry, in which was used a certain machine called a shirt-bosom ironer, proceeds to set forth the grounds of negligence on the part of the defendant in respect to the said machine and the plaintiff while operating it, as follows: (1) That the defendant so negligently and carelessly adjusted the ironing machine, and so negligently and carelessly suffered and permitted the same to be out of repair, and so negligently and carelessly suffered and permitted the brake and levers of said machine to be and remain rusty and difficult of operation, so that the said machine, and especially the pressure of the heated roller on the ironing board or table, could not be regulated and controlled, whereby and because of which the ironing board or table would not freely pass underneath the roller of the said machine at the proper distance and place intended for it, and would not release itself and return automatically, as was intended. (2) That the defendant so negligently and carelessly adjusted the said machine and suffered and permitted it to be out of working order, so that it would run in a jerking and irregular manner, and so that the heated roller did not work properly, but at times slipped and revolved with greater rapidity than at other times. (3) That the defendant negligently and carelessly failed to guard or protect the roller of said machine so as to prevent the hand or arm of the person operating it from being drawn in between the said roller and the ironing board or table. (4) That the defendant carelessly and negligently failed to properly instruct the plaintiff in respect to the mechanism of the said machine, or as to the use thereof, or as to the manner of prosecuting or performing her work thereat, and failed and neglected to warn her of the dangers and risks incident thereto, and especially of the danger and risk of her arm or hand being drawn in between the roller and the ironing table or board of the said machine, although plaintiff was ignorant of the said dangers and risks. (5) That, on the contrary, the defendant negligently and carelessly instructed and directed the said plaintiff in the prosecution of her work to take hold of said ironing board or table with her hands, and to hold thereto so as to prevent it being propelled too far underneath and past the said roller of the said machine, and by hand to pull or draw the same back and return it to its former position, all of which was an improper and unskillful way and manner of prosecuting said work, as plaintiff is now informed, but of which fact she knew not at the time of her injury; such method being made necessary, however, by reason of the machine being improperly adjusted and out of working order. The complaint concludes by alleging that whilst the plaintiff was operating the ironing machine as directed, whilst she was exercising ordinary care on her part, and whilst she was ignorant of the dangers involved therein, her hand was, in consequence of the aforesaid acts of negligence of the defendant, drawn in between the roller and the ironing board and table, as a result of which it was injured and a portion of it had to be amputated.

The answer of the defendant admits, first, that at the time of the accident and of the bringing of the action it was a corporation existing under the laws of Utah; second, that it was at said times engaged in the business of operating a laundry, and was using therein the ironing machine described in the complaint; third, that the plaintiff, when injured, was in the employ of the defendant, was operating the machine in question, and was injured as set forth in the complaint, but denies each and every other allegation (that is, the answer denies that the defendant was guilty of any of the acts of negligence set forth in plaintiff's complaint). Further answering, the defendant affirmatively alleges that the plaintiff had been employed to run the machine, was familiar with its operation, understood the dangers incident to running it, and therefore assumed all risk of injury therefrom. Also that plaintiff's act in placing her hand on the ironing board as it was about to pass under the heated roller was unnecessary, and constituted negligence, which proximately contributed to her injury.

The facts, as developed at the trial from the testimony introduced on behalf of the plaintiff, are as follows: The defendant was, at the time the plaintiff received her injuries, engaged in the business of conducting a laundry in Salt Lake City. The plaintiff, at the time of the accident was about twenty-two years of age, was employed by the defendant as a laundress, and had been so employed for about two years and a half. Prior thereto she had been engaged in the same occupation at another laundry for about a year and a half, and, during her entire experience, had worked at several different ironing machines, more or less similar to that at which she was injured, though she had no technical knowledge of the mechanism of any of them. She had operated two different sorts of mangles, which, according to her testimony, consist of a pair or more of large rollers, between which the articles to be smoothed are passed over a stationary table in front of them,...