Wiley v. Batchelder

• Decision Date: 16 August 1909
• Parties: WILEY v. BATCHELDER.
• Court: Maine Supreme Court

75 A. 47

105 Me. 536

WILEY

v. BATCHELDER.

Supreme Judicial Court of Maine.

Aug. 16, 1909.

(Official.)

Exceptions from Supreme Judicial Court, York County.

Action by Lewanna Wiley against Joshua G. Batchelder. Judgment of nonsuit, and plaintiff excepts. Exceptions overruled.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and BIRD, JJ.

E. P. Spinney, for plaintiff.

Allen & Abbott, for defendant.

WHITEHOUSE, J. On the 17th day of July, 1906, the plaintiff, a woman 55 years of age, was employed as an operative in the defendant's steam laundry at Sanford, and while engaged in running a tablecloth through an ironing mangle received a severe injury to her left hand, resulting in the amputation of the first and second fingers. This ironing machine, known as a "Ternary mangle," consisted of a steam heated drum or cylinder about 15 inches in diameter, over which were three smaller cylinders or rollers about 8 inches in diameter, padded with cloth. In front of the heated drum and about half an inch from it, was a board about a foot wide, called an apron or feed board. The small rollers above were so close to the heated drum that a tablecloth placed upon the apron against the revolving drum would be carried up and gripped between the drum and the small rollers, and dried and smoothed as it was carried through. It was the duty of the operative to keep it smooth by holding it on the feed board, and in some instances to retain her hold upon the corners of it until it was within an inch of the point of contact with the upper rollers.

This mangle had been used by the defendant and his predecessors in the same laundry for more than three years prior to the accident without any guard rail or protection bar to prevent the hands of the operative from being caught between the cylinders. Indeed, it appears from the evidence introduced by the plaintiff that the work which this machine was designed to perform could be more easily and rapidly done without any guard rail or protecting rod, and that this method of operating it was accordingly preferred by the operatives as well as by the proprietors.

The plaintiff had worked in this laundry at different times for more than a year, and for about four weeks before the accident had constantly operated this mangle. Prior to this month of steady work upon it, she had occasionally operated it with the assistance of another person during the year or more of her employment there, and during her entire service in connection with this mangle no guard rail was ever used upon it Her description of the mangle and the proper method of operating it, as given in her testimony, discloses a full knowledge and appreciation on her part of the nature and extent of the danger to which she was exposed in operating it without a guard rail. In cross-examination she testified that she could see the machine in front of her, and knew, if she put her hand in there, she would get hurt, but added: "I didn't put my hand in there. It went in accidently." It also appears that the accident happened during a violent thunder shower, and there is evidence tending to show that, after the accident, the plaintiff stated that she jumped at a flash of lightning, and put her hand into the mangle, and that "there was nobody to blame but herself."

In this action to recover damages for the injury received by the plaintiff, it is contended in her behalf that the mangle in question upon which she was engaged to work was structurally defective and unsuitable by the reason of the absence of a guard rail or protection bar, and that there was a failure of duty on the part of the defendant in this respect and also by his omission to give the plaintiff instruction and warning in regard to the perils incident to the operation of the machine without a guard rail.

At the close of the testimony introduced in support of the plaintiff's contention, on motion of the counsel for the defendant, the presiding judge ordered a nonsuit to be entered. The case comes to the law court on the plaintiff's exceptions to this ruling; but a careful examination of all of the evidence in the light of established principles of law leads irresistibly to the conclusion that nonsuit was properly ordered, and that the exceptions must be overruled.

The doctrine of the assumption of risks by laborers who engage to operate unguarded machinery similar to that in the case at bar, the dangers of which are manifest and readily discernible, has been repeatedly examined and carefully considered in the recent decisions of this court, and no extended discussion of the principle is now required it was the primary duty of the defendant to use ordinary care to provide and maintain reasonably safe and suitable machinery for the plaintiff to operate, so that, by the exercise of due care on her part, the plaintiff could perform the service required of her without liability to other injuries than those resulting from simple and unavoidable accidents. But the rule is now equally familiar and well settled at common law that if an operative continues in the service of his employer after he has knowledge of the unguarded condition of any machinery in connection with which he is required to labor, and it appears that he fully understands and appreciates the nature and extent of the perils to which he is thereby exposed, he will be deemed to have waived the performance of the employer's obligation to provide suitable guards, protecting rods, and hoods for dangerous machines, and to have assumed the risks of an employment to which he has thus voluntarily and intelligently consented. Cunningham v. Iron Works, 92 Me. 511, 43 Atl. 106, and cases cited. If the operative "does not ask for further safeguards or otherwise so conducts himself as to assure his employer that he is content with the machinery and appliances as they are, and will himself take the chance of injury, he cannot after an injury transfer the risk to his employer." Jones v. Manufacturing Co., 92 Me. 569, 43 Atl. 512, 69 Am. St. Rep. 535; Dempsey v. Sawyer, 95 Me. 298, 49 Atl. 1035; Cowett v. Woolen Co., 97 Me. 546, 55 Atl. 494; ...