106 P. 62 | Cal. | 1909
Plaintiff, by her guardian ad litem, sued to recover damages for injuries to her hand and wrist received while she was working at a machine known as a "mangle." The case was tried before a jury. A motion for nonsuit was granted in favor of May E. Bloemer, but judgment was given in favor of plaintiff against John H. Bloemer for twenty-two hundred and fifty dollars. From this judgment he appeals.
There were two causes of action pleaded. In the first it was alleged that at the time of the accident Bertha Larsen was a minor, inexperienced in working about a mangle, and that she had never been instructed in the dangers or hazards of employment on or near said machine; that "the said mangle of the said defendant upon which the plaintiff was put to work was unsafe, defective, unsuitable and dangerous for such use, for the reason that the said mangle when once set in motion could not readily be stopped; there being no lever near the hand of the operator for that purpose; that the said lever had become broken or out of repair so that the mechanism for starting the mangle had to be put on by the operator stooping down and with great force pushing or pulling it in place, and then in order to keep it in place was obliged to securely tie the same with a rope or string, and in order to stop the said mangle while in motion or in operation, was obliged to untie the said rope or string and with great force release the machinery and thereby stop the running of the mangle, which defective, unsafe and dangerous condition of said mangle and the apparatus and machinery thereof was *754 unknown to the plaintiff and was well known to the said defendants"; that while working at said mangle, in the course of her occupation and without fault on her part, she being inexperienced and uninstructed in the dangers of said machine, her fingers were caught between the heavy rollers used for the ironing of clothes, and, owing to the condition of the mangle, the operators thereon were unable to stop the machinery until the plaintiff's hand was so badly injured that amputation was made necessary. The second cause of action is based upon allegations to the effect that defendants provided Bertha Larsen an unsafe and dangerous place in which to work; that while busy at said mangle and while attempting to smooth the cloth on the rollers thereof, and without fault on her part "her fingers were caught between the rollers of the said mangle as aforesaid, which said mangle by the carelessness and negligence of the said defendants as aforesaid could not be readily stopped, and by the reason of the facts of the dangerous, defective and unsafe condition of the said machinery and appliances of the said mangle, the operators thereon were unable to stop the running of the said mangle until the same had crushed, cooked and burned the right hand of the said plaintiff Bertha Larsen, and crushed the bones and flesh thereof, and greatly bruised and wounded the said plaintiff Bertha Larsen."
According to appellant, as there is no allegation that the mangle was inherently dangerous, or that its use or danger were unknown to Bertha Larsen, she must have been guilty of contributory negligence in getting her fingers caught at all, and "plaintiff seeks to recover for that portion of the injury occasioned to her hand by the alleged negligence of defendant in maintaining the mangle in a condition so that it could not be readily stopped after the fingers were caught therein." Appellants' counsel assert that the courts of this state do not recognize the doctrine of comparative negligence, and that plaintiff cannot recover for the portion of the injury caused by defendant's fault, citing Hatch v. McCloud River Lumber Co.,
This case in its facts is much like that of Sibert v. ScotlandCotton Mills,
In this case the court submitted to the jury (and we think properly) the questions of Bertha Larsen's minority and her lack of instruction regarding the dangers of her employment. This was within the pleadings previously quoted. There was a conflict of evidence both as to her instruction or lack of it, and in reference to her knowledge of the dangers of putting her hand upon the rollers on the "receiving" side of the mangle where the clothes were taken out and folded after they had been ironed. With such conflict we have nothing to do if there is any evidence tending legitimately to sustain the plaintiff's theories on these points. Bertha Larsen testified that she had received no warning or instruction with reference to the dangers to be encountered in working about the machine. At the time of the accident she had been employed by defendant just four weeks. She testified in part as follows: "I never paid any particular attention to the machine on the folding side because I did not realize there was any danger there where the clothes came out. The machine had just started up before I was injured and the rollers were turning very slowly. The rollers were covered with a canvas or cloth. That cloth would sometimes become wrinkled, and they were straightened out by our hands. If it was running we would do it while the machine was in operation." Speaking of the manner in which her fingers were caught, she said: "I don't know exactly how I got them in that day unless I was smoothing the cloth." She was corroborated in many of her statements by other witnesses. We cannot, therefore, disturb the conclusions of the court and jury regarding her *758
minority, her ignorance of machinery, and her lack of instruction with reference to the dangers of her work at the mangle. But appellant contends that the peril was so obvious that she must be presumed to have been fully cognizant of it. With the record in this case are photographs of the mangle, accompanied by an explanation of its mechanism. From this it appears that while she must have observed the cloth-covered rollers from her station at the folding bench or shelf, she could not see the heated cylinder which produced so much of the damage suffered by her. As was said by this department in Quinn v. Electric Laundry Co.,
We have carefully examined the instructions and find no errors therein.
There was some controversy with reference to an amendment to the complaint which, according to appellant's counsel, was inserted in the record after the trial. Appellant filed an affidavit by the county clerk that said amendment was not permitted during or before the trial. This was met by a counter affidavit by respondent's attorney to the effect that the amendment in question had been allowed at the trial, but had not been copied into the pleading by the clerk as ordered by the court. This matter was heard by the judge of the superior court at a time when counsel for all the parties were present and determined adversely to appellant's contention. When and under what circumstances an order permitting an amendment to a pleading is made and the substance of such amendment, are matters peculiarly "within the breast of the court." We will not disturb the correction in diminution of the record thus made.
The judgment is affirmed.
Lorigan, J., and Henshaw, J., concurred. *759