Butler v. Frazee
25 App. D.C. 392
D.C. Cir.
1905
Check Treatment
Mr. Chief Justice Shepard

delivered the opinion of the Court:

The rule of law is well settled that it is the duty of the employer to provide suitable and reasonably safe machinery and appliances for the use of his employee, and that this duty cannot be avoided by intrusting its performance to some other employee. Patton v. Texas & P. R. Co. 179 U. S. 658, 664, 45 L. ed. 361, 365, 21 Sup. Ct. Rep. 275; and cases cited.

Notwithstanding this duty rests upon the employer, there is no guaranty by him that the machinery and appliances provided are absolutely safe. Patton v. Texas & P. R. Co. 179 U. S. 658, 45 L. ed. 361, 21 Sup. Ct. Rep. 275; Washington & G. R. Co. v. McDade, 135 U. S. 554, 570, 34 L. ed. 235, 241, 10 Sup. Ct. Rep. 1044; Southern P. Co. v. Seley, 152 U. S. 145, 153, 38 L. ed. 391, 395, 14 Sup. Ct. Rep. 530; Washington Asphalt Block & Tile Co. v. Mackey, 15 App. D. C. 410, 423.

Therefore, when an injury is received by an employee, while working with the machinery or appliances provided for his operation or use, the fact of accident carries with it no presumption of neglect of duty on the part of the employer, as in the case of a passenger; for example, where there is a contract *402for safe carriage, and the burden rests upon the employee to show such negligence as an affirmative fact. “It is not sufficient for the employee to show that the employer may have been guilty of negligence — the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employee is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.” Patton v. Texas & P. R. Co. 179 U. S. 658, 663, 45 L. ed. 361, 364, 21 Sup. Ct. Rep. 275.

The testimony of the plaintiff herself, and there was no other as to the immediate cause of the accident, lacks directness and certainty; and one can hardly escape the conclusion that she was not paying sufficient attention at the time to be able to say whether, as a matter of fact, it was due to the unsafe adjustment of the finger-guard, or to her own careless handling of the cloth which she was engaged in pushing into contact with the revolving cylinder.

But assuming the soundness of the contention on her behalf, that her hand could not have been carried between the cylinders at all, if the finger-guard had been so adjusted as to leave a space not exceeding % of an inch, of which adjustment it was capable, instead of the actual space of 1% inches; and assuming also the truth of the testimony offered on her behalf tending to show that a space not exceeding % of an inch was ample for the proper operation of the mangle under all conditions, we are of the opinion that the court was right in directing a verdict for the defendant.

It plainly appears from the testimony of the plaintiff that *403she was twenty-two years of age at the time of the accident, and it must be presumed that she was possessed of ordinary intelligence. She had had about two years’ experience in operating mangles in other laundries before entering the service of the defendant. These, however, had all been equipped with finger-guards adjusted, so low as to prevent the operators’ fingers from coining in contact with the cylinders which engaged each other a few inches beyond. She entered defendant’s service in May, 1902, had been assigned to duty as one of the operators of this mangle in October, and sustained the injury December 28 of the same year.

The space left in the adjustment of the finger-guard, assuming it to have been unusual and unnecessary, as well as dangerous, was unhidden and plainly visible. It was immediately under the plaintiff’s eyes and in close proximity to her finger ends when she was constantly employed in pushing the cloth which passed under it into engagement with the ironing cylinders. It is inconceivable that this adjustment could have escaped the observation of the plaintiff during more than two months of this constant employment. Under such circumstances she must be presumed to have had knowledge of a condition which would necessarily have become known through the ordinary exercise of her faculties. The defect being obvious to one of plaintiff’s intelligence and experience, the defendant was under no duty to instruct her in the performance of her services, or to correct it in the absence of any complaint or request made by her.

The doctrine of law is established beyond question, that where' an employee undertakes and continues the use of defective and unsafe appliances, either with actual notice of such defect, or where the same is open to ordinary observation in the usual course of its use, he must be deemed to have accepted the risk of all danger reasonably to be apprehended from such use, and cannot recover of his employer. Southern P. Co. v. Seley, 152 U. S. 145, 155, 38 L. ed. 391, 396, 14 Sup. Ct. Rep. 530; Washington & G. R. Co. v. McDade, 135 U. S. 554, 570, 34 L. ed. 235, 241, 10 Sup. Ct. Rep. 1044; Texas & P. R. Co. v. *404Archibald, 170 U. S. 665, 673, 42 L. ed. 1188, 1192, 18 Sup. Ct. Rep. 777; Hayzel v. Columbia R. Co. 19 App. D. C. 359, 371; Crowley v. Pacific Mills, 148 Mass. 228, 19 N. E. 344.

In the following cases, all of wbicb were actions for injuries sustained by employees in the operation of mangles, recoveries were denied under the application of this doctrine to facts and circumstances of the same general nature as those shown in the case at bar. Connolly v. Eldredge, 160 Mass. 566, 570, 36 N. E. 469; Blom v. Yellowstone Park Asso. 86. Minn. 237, 239, 90 N. W. 397; Kenean v. Waters, 181 Pa. 247, 37 Atl. 344.

For the reasons stated the judgment must be affirmed, with costs; and it is so ordered. Affirmed.

A writ of error to the Supreme Court of the United States was allowed June 15, 1905.