Tyrrell v. E. E. Cain & Co.

• Decision Date: 21 November 1910
• Citation: 128 N.W. 536
• Court: Iowa Supreme Court
• Parties: TYRRELL v. E. E. CAIN & CO.

128 N.W. 536

TYRRELL

v.E. E. CAIN & CO.

Supreme Court of Iowa.

Nov. 21, 1910.

Appeal from District Court, Greene County; F. M. Powers, Judge.

Action to recover damages for personal injuries received while in defendants' employment and alleged to have resulted from defendants' negligence. At the conclusion of the evidence, the court on defendants' motion directed a verdict in their favor, and from a judgment on this verdict plaintiff appeals. Reversed.

Deemer, C. J., dissenting.

Gallaher & Graham, for appellant.

Wilson & Albert, for appellees.

McCLAIN, J.

The plaintiff was at the time of her injury a little past 21 years of age, and had been employed for several months in defendants' laundry. She had worked about the machinery of the laundry in various capacities, but on the day on which she was injured had for the first time been engaged in feeding the mangle, consisting of a large roller heated with steam and smaller rollers, between which and the large roller the articles to be dried and ironed were passed. While feeding a folded sheet into this mangle with her right hand between the folds of the sheet in the act of smoothing out the folds, so that the sheet would properly be fed through and ironed, plaintiff's fingers were caught between one of the small rollers and the large heated roller, and her hand was drawn in to a point above the wrist. By means of a treadle provided for that purpose, the motion of the roller was stopped; but, before the machinery could be so loosened that plaintiff's hand could be removed, the power was in some way again applied, and plaintiff's arm was drawn into the rollers still further. Before plaintiff was released, her hand, wrist, and arm had been very severely burned, causing permanent injuries entirely incapacitating her from any use whatever of her hand and wrist.

It is alleged by way of negligence on the part of defendants that plaintiff, inexperienced in the use of the machine, was allowed to operate it without warning as to its dangerous character; that the machine was not provided with any guard or safety device to protect the plaintiff against the danger of her fingers being caught between the rollers, although such devices were in common use on such machines; and that the defendants were negligent in providing for plaintiff's use defective and incomplete machinery. There was also an averment of negligence on the part of defendants in starting the machine after plaintiff's hand had already been caught therein, causing additional injury to plaintiff. Plaintiff further alleged absence of contributory negligence on her part. The allegations of negligence on the part of defendant and plaintiff's freedom from contributory negligence were denied, and defendants pleaded the assumption of risk on plaintiff's part.

The evidence tended to show that, while plaintiff had not been feeding the mangle prior to the day on which she was injured, she had previously worked about it in removing articles which had passed through it, and was familiar with the method in which the feeding was done, and aware of the danger incident thereto. It also appears that she had previously fed another machine similar in construction used for the purpose of ironing starched articles. As it appears from plaintiff's own testimony that she was aware of the danger of getting her fingers caught between the rollers and of the consequence which would result, we think there was no occasion to submit to the jury any question as to negligence of the defendants in putting plaintiff at work without warning about the dangerous piece of machinery. It is quite apparent that plaintiff could not have been better advised by any warning than she was advised by her own observation and experience that she was likely to be severely injured if her fingers got caught between the rollers. But the contention for appellant that she did not assume the risk of the negligence of defendants in failing to furnish a safety device, as required by section 2 of the factory act (Acts 29th Gen. Assem. c. 149, § 2; Code Supp. 1907, § 4999a2), must receive special consideration, and we shall have to notice also two or three questions raised as to the admissibility of evidence.

1. There was evidence tending to show that five or six months before the accident the defendants were advised by the state factory inspector that the machine in which plaintiff was injured was defective in not having a guard or hood of some kind to prevent the kind of accident which occasioned the injury to plaintiff, and defendants were told that they must put on such a guard. The evidence further tended to show that such a guard was practicable without interfering with the operation of the machine, and that guards were in common use on like machines. Evidence was offered which, if received, might have tended to show that the machine was originally provided with some kind of a guard, which had not been in use after plaintiff was employed in the laundry.

It is conceded that the machine which caused the injury to plaintiff was not properly guarded as required by the section of the factory act above referred to, and that in failing to so guard it defendants were negligent. But the view of the trial court seems to have been that if plaintiff was aware of the danger involved in the use of the machine, and continued in the employment without objection on that ground and promise to make the machinery safe, she assumed the risk involved and was guilty of contributory negligence such as to preclude recovery for injuries resulting from the obvious defect and danger. This view was predicated on the conclusion of this court announced in Sutton v. Des Moines Bakery Co., 135 Iowa, 30, 112 N. W. 836, a case in which it was held that an employé operating a kneading machine consisting of two rollers running close together through which dough was fed by such employé, could not recover for an injury resulting from having his hand caught between the rollers while he was engaged in cleaning them. The court held that, notwithstanding the failure of the defendant to have the machine guarded by a hood at the time the injury happened, the plaintiff assumed the risk of its unguarded condition, and was negligent in operating it in that condition. It is not now necessary to review the question whether an employé operating a machine not provided with safety appliances, as required by statute, with knowledge that proper safety appliances are absent, and with full knowledge that such appliances are required not only by the factory but in the exercise of reasonable care for the employé's safety on the part of the employer, assumes the risk incident to the employer's delinquency. It is proper to say, however, that the case of Martin v. Chicago, R. I. & P. R. R. Co., 118 Iowa, 148, 91 N. W. 1034, 59 L. R. A. 698, 96 Am. St. Rep. 371, relied upon in the Sutton Case, did not relate to a failure of the employer to comply with the provisions of the factory act or any other statute or ordinance especially directed towards protection of the employé from danger; and that case was not therefore directly a precedent for holding that an employé could assume the risk of the violation of a statute directly designed for his protection. On this general question, see the recent case of Poli v. Numa Block Coal Co. (Iowa) 127 N. W. 1105.

The case before us differs from the Sutton Case in at least one very material respect. In that case the employé knew that proper safety appliances were absent and continued in the employment without objection notwithstanding such absence. In the case before us, plaintiff, while appreciating the danger of getting her fingers caught in the revolving rollers, knew nothing about any appliances being practicable or usual which would have lessened such danger. In other words, the plaintiff, while assuming the risk generally incident to employment about such a machine, did not answer the risk involved in the absence of safety appliances, for she had no knowledge that such safety appliances, as would lessen the danger had been omitted. This is not a case, therefore, of the ordinary assumption of risk of a dangerous employment, but it is a case of assumption of risk resulting from defendants' negligence. This latter form of assumption of risk was pleaded by defendants, and as to it the defendants had the burden of proof. Shebeck v. Nat. Cracker Co., 120 Iowa, 414, 94 N. W. 930;Martin v. Des Moines Edison Light Co., 131 Iowa, 724, 106 N. W. 359;Clark v. Johnson County Tel. Co., 137 Iowa, 81, 114 N. W. 554. To sustain defendants' claim that plaintiff assumed the risk involved in the failure of defendant to comply with the factory act by affording a practicable safety device on their machine, it was not sufficient to show merely that plaintiff knew there was danger in operating a machine consisting of rollers in which her fingers might be caught, but also that she knew and appreciated the danger in operating such a machine without a safety appliance which it was defendants' duty to furnish. Knowledge and appreciation of this danger on the part of plaintiff was not shown, and we think therefore that the court erred in assuming that general knowledge that the operation of the machine involved danger to plaintiff was sufficient to sustain defendants' allegation of assumption of risk by plaintiff of defendants' negligence.

2. What has been said about assumption of risk bears also on the question whether the evidence for plaintiff tended to negative contributory negligence on her part. The mere fact that she undertook to operate a piece of machinery inherently dangerous was not sufficient to show contributory negligence; nor was the fact that the machine was in some way dangerous to plaintiff working about it in itself sufficient proof of negligence on defendants' part in putting plaintiff at work about it. In the very nature of things, it is often necessary that machinery to...