181 Iowa 389 | Iowa | 1917
On the third day of plaintiffs employment, the boxes became clogged in this elbow. The aforesaid opening into the elbow was just above her head. By standing on her tiptoes, she could just reach the bottom of said pipe. She could not put her hands into the opening to loosen the boxes, without jumping. She jumped twice without being able to get her finger in. She jumped a third time, and at this time succeeded in getting her fingers into the opening and against the boxes therein, and was injured. The appellant insists that, in putting her fingers into this opening, plaintiff was only doing her duty, which required her to keep the boxes moving, and, as her injury could
The essential claim for appellant is that her instructions to keep these boxes going meant that she was required to keep them going before they reached her there; that she could not keep them going unless she kept them coming. She was told what her duties were before she entered upoxx the' employmexxt in which she was injured. Whatever understanding she had as to what was required of her, she obtaixxed at that time. If she uxxderstood that she was required to reach into the elbow and loosen ,tbe
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Unless the age of the plaintiff makes a difference, then if we assume that what the plaintiff did was not done in the course of her employment, it seems to us to be immaterial, if it be true, that what plaintiff did was customary, and that she was influenced by seeing others stick their finger into this opening. Even if we pass the point that she saw this done but once, and then by a girl who was a machine operator, and who was tall enough to be able to put her band into the opening without jumping, to give this alleged custom any importance in the case of an adult gives no importance to the departure from
It is held, in Gallenkamp v. Garvin Mach. Co., (N. Y.) 99 N. E. 718, that the word “operate” means to put in action, supervise the working of, put into or continue in operation, as to operate a machine; and that, where the operation of a hoist was relied upon, the burden was on plaintiff to show that, in addition to its being- a hoist, its use was subject to some danger not usual to such appliances. Further, that a conveyor hoist in a tool factory consisting of pans on which tools were placed for transportation up and down, moving at the rate of about one foot per second, which it was perfectly safe to operate so long as the person using it did not place some portion of his body inside the conveyor shaft between the pans and keep it there for a sufficient length of time to allow the succeeding pans to strike him, is not a dangerous machine, as distinguished from an ordinary elevator or other moving-machine in a factory, so as to make the master liable for injuries to a minor servant while negligently operating the conveyor.
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As to some claim based upon the degree of air pressure in the pipe as a factor in moving the boxes through it, the answer is' there is no evidence that plaintiff was hurt because of that pressure. Her injury came because, 'while in tire act of jumping, she tore her finger on a sharp edge at the bottom of the pipe. This disposes, too, of objections to limitations upon cross-examination. Had it been pursued, it would have disclosed no more than that an air current helped the boxes through the pipe, and that some parts of some machinery were guarded.
Recurring: if there should have been such anticipation where there was reason to believe the employe lacked sufficient mentality to appreciate what she was doing, we have to say that this record presents no such case. Plaintiff testifies she belongs to a family in Avhich the children are compelled to display commercial activity early; that she has one brother, eight years old, Avho sells papers. She states that she worked in a laundry before she entered the employ of defendant, and exactly AAdiat that employment was, and points out that there she worked on no dangerous machinery. She remembers in detail Avhen this was. In explaining that she took half a term of music lessons, she says, “By half a term I mean six lessons.” She testifies she Avent to the mill because she thought she could get more money; that she Avent A\dth a cousin; that her cousin wanted her to go, though her mother did not, and that the mother did not know she went; that the cousin first suav the foreAvoman; that the cousin first inquired of another whether plaintiff could be employed, and on being told “no,”
But defendant was advised that plaintiff was less than 16. The statute prohibited ‘her being permitted “to operate or assist in operating dangerous machinery of any kind.” Code Supplement, 1913, Section 4999-a2. This statute effects nothing in this case, unless it may be held that plaintiff was permitted to operate or assist in operating dangerous machinery. We have already said that the thing that injured her was not .operated as machinery, was not machinery at all, and, therefore, not dangerous machinery. If it were, that plaintiff chose to abandon the work for which she was employed, and operated dangerous machinery, is certainly not a permission to have her do so. The statute would rule only had the pipe been dangerous machinery, and it had been or should have been known that plaintiff was operating it,' and been permitted to do so. That is why the citations relied upon by the appellant have no application.
Pettit v. Atlantic C. L. R. Co., (N. C.) 72 S. E. 195, holds that, in the absence of statute, a recovery cannot be had for injuries to an infant under 12 merely bécause he is an infant; wherefore, a statute which provides that no child under 12 shall be employed in any manufacturing establishment or factory, does not prohibit his employment by a railroad company as a messenger. Stehle v. Jaeger A. M. Co., (Pa.) 74 Atl. 215, is decided under an act which makes it unlawful to employ any child under 14 in any “establishment” as defined in the act. Upon this it was held that, where such child is injured in such establishment, there is never a question of risk of employment or of contributory ¡negligence. In Casteel v. Pittsburg V. P. & B. B. Co., (Kans.) 112 Pac. 145, the statute, undei
It was held that employment of one under 14 in violation of the statute is evidence of negligence on part of the employer as to injury sustained “in the course of such employment,” without reference to the character of the work the child is required to perform; that the question of contributory negligence is not involved “unless the minor can be said by his negligence to have contributed to the act of employment.” In Sharon v. Winnebago F. M. Co., (Wis.) 124 N. W. 299, the statute under consideration is one which absolutely prohibited certain work to be done by children under 16, and their being employed in certain occupations. The employment involved was the operation of a circular saw, contrary to statute. It was held as to this that the efficient proximate cause was the negligence of the master
Casperson v. Michaels, (Ky.) 134 S. W. 200, does hold that, in the case present there, the proximate cause of injury to a child employed at a laundry mangle in violation of statute is, as affecting the employer’s liability, the said unlawful employment, and it is held upon these premises that, when a child is thus injured while warming her hands on a revolving cylinder before commencing work, it is no defense that she was injured by a part of the mangle at which she is not expected to work, and while not at work. The Kentucky statute absolutely prohibits the employment of children under 16 to operate such machinery as was operated in the case. The distinction is, then, that here there was no dangerous machine to operate upon, and no permission was given to go elsewhere and operate such an one, and, where one employs a child to work at a mangle in disregard of a positive statute, it is not a strain to hold he might anticipate that, if such machine has a revolving cylinder at which the child can be warmed, it might warm its hands at said cylinder on coming in from the outside to assume the prohibited employment. In other words, in the Kentucky case one who had committed a tort was, under elementary laws, held to be responsible for what might reasonably, though not necessarily, follow from the tort, though it was not expected it would follow. The gap in the case before us must be bridged by assuming, and without authority, that the employment given was prohibited; next, that the conveyor was a dangerous machine; that handling it was permitted, and, if not' permitted, should have been anticipated and guarded against.
It follows from what we have said that the judgment and order appealed from must be — Affirmed.