28 Mont. 1 | Mont. | 1903
Lead Opinion
delivered the .-pinion of the court.
This action was brought by the plaintiff, Elizabeth Coleman, • against the defendants, as copartners operating the Union Steam Laundry, in. Butte, Montana, to recover damages for personal injuries received by her while at work in that laundry. The plaintiff claims that she was employed to check the laundry when it came in, to fold it after it had passed through the different processes of laundry, and cheek it out again; that on Eebruary 3, 1896, she was directed by one of the defendants to work on the mangle or ironing machine, feeding the fabrics¡ into it; that while engaged in this occupation, without any negligence on her part, her hand was caught, crushed, and burned in the mangle, by reason of which she suffered great personal injury and damages. She further claims that the defendants were guilty of negligence in keeping, for use and permitting to be used an ironing machine which was out of’repair, and in an unsafe condition for operation. The answering defendants deny any negligence on their part, plead contributory negligence on the part of the plaintiff, and set up in their answer that the danger incident to the operation of the mangle was one of the risks of the employment, which the plaintiff assumed when she went to work. Upon the trial of the cause, at the close of the plaintiff’s testimony, the defendants interposed a motion for nonsuit, which was overruled. Among others the court gave instruction No. 2, which is as follows,: “The court instructs the jury .that if the jury find from the evidence that plaintiff has been injured by the negligence of the defendants, substantially as set forth in her complaint, then she is entitled to> recover from the defendants such an amount as will compensate
The contention of the plaintiff was that she was employed to do particular work which would not, in any event, bring her into contact with the laundry machinery; that she had had no' previous experience in laundry work;, that she knew nothing whatever about the machinery; that, as a matter of fact, the mangle in use was out of repair, and in a dangerous condition; that the rollers were not operating evenly; that it was necessary for the person feeding it to place the left hand much nearer the rollers than the right, in order to get the fabrics through; that all of these facts were unknown to her; that there was no guard on the machine to protect the "operator; but, notwithstanding her inexperience, and the fact that she had been employed to do other work, she was directed by one of the copartners on the morning of her injury to feed this mangle; that she was not cautioned, instructed, or notified as to the dangerous character of her employment; and that it was without fault on her part that she received the injury. The evidence offered on her behalf tended to prove this contention, and under the rule, well established, that on motion for a nonsuit every fact will be deemed proved which the evidence tends to prove (State ex rel. Pigott v. Benton, 13 Mont. 306, 34 Pac. 301; Morse v. Granite County Commissioners, 19 Mont. 450, 48 Pac. 745; Cain v. Gold Mt. Mining Co., 27 Mont. 529, 71 Pac. 1004), the evidence should have gone to the jury, and the motion for nonsuit was properly denied.
Complaint is made that the witnesses Lewis and Stanhope, for the plaintiff, were each permitted to state, in answer to a hypothetical question, that, in his opinion, the mangle was out of repair. The contention is that, a description of the machine having been given by other witnesses, the jurors were as well qualified to say whether or not the machine was out of order as
IJpon cross-examination of one of the defendants, plaintiff’s counsel sought to show that soon after plaintiff was injured the defendants undertook to put a guard on the mangle, and in ruling upon an objection ntadé by counsel for defendants, the district court used this language: “I shall allow the testimony sought to be adduced to go to the jury, believing that, if it can be shown that the defendants here realized that the machine in question was defective, and that they sought, within a few days after the injury to this plaintiff, or after the alleged injury, to cure or remedy such defect, for the reason that it would tend to show that at the time of the injury the machine was then de
It is further contended on the part of the defendants that the danger of operating this mangle was a risk incident to the employment of the plaintiff, and one which she assumed when she went to work. The question whether or not the dangers of operating this particular machine were so obvious that even an inexperienced person could not fail to notice and avoid them, if exercising ordinary care and prudence, was for the jury’s solution under proper instructions.
Particular complaint is made of instruction No. 2, above'. Under Section 4830 of the Civil Code, which provides : “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not,” we are of the opinion that the instruction is not open to the objection made to it-. In any event, there is no showing in the record that the defendants asked for any more definite- declaration upon the subject.
There is no dispute in the record that the plaintiff was em
It is further contended that the allegations of contributory negligence contained in the defendants’ answer, being undenied by’ a reply, are admitted. At the time the pleadings were prepared and the issues made up-, Section 720 of the Code of Civil Procedure was in force, and a reply was required only when the answer contained a counterclaim. This section was afterwards amended by Act of the Sixth Legislative Assembly (Laws of 1899, p. 142), but this was long after the issues were made up in this action.
The other particulars to which our attention has been called do not merit special mention.
The evidence is sufficient to sustain the verdict. We find no» error in the record.
The judgment and order appealed from are affirmed.
A -/firmed.
Dissenting Opinion
I dissent. A jury trying a damage suit wherein a woman is trying to recover compensation for injuries to her hand which has been crushed and mutilated by the defendants’ machine, in my opinion, should not be given an instruction such as No: 2 herein. This instruction is not in the language of the Civil Code, Section 4330, quoted by Me. Justice Holloway. If the instruction, like the section of the Code, be ambiguous, in that it does not say in plain language that the defendant, and not the plaintiff, is. referred to as the person who could or could not anticipate the detriment, then it should not have been given. It would not, in my opinion, relieve the situation to say that the section of the Code is as ambiguous as the instruction. The language of the Code is not always, a safe and sure means of conveying thought, or of stating the law to a juror. (State v. Baker, 13 Mont. 160, 32 Pac. 647; State v. Shafer, 26 Mont. 11, 66 Pac. 463; State v. Felker, 27 Mont.