152 Iowa 732 | Iowa | 1911
The facts appearing in the record as supported by the evidence were set out to some extent in the opinion on the former appeal, 'but, for the purpose of ■disposing of some of the questions now raised, a fuller statement seems to be necessary.
The plaintiff, a girl seventeen years of age, was employed in a laundry owned and operated by the defend
In determining whether the risks and dangers incident to the operation of machinery in the condition in which it is used are so obvious as to have been necessarily appreciated by the employee as a reasonably prudent person and to have been assumed, the court may properly take into account the age and experience of the employee; Bromberg v. Evans Laundry Co., 134 Iowa, 38; Woolf v. Nauman Co., 128 Iowa, 261; Shebeck v. National Cracker Co., 120 Iowa, 414; Gray v. Commutator Co., 85 Minn. 463, (89 N. W. 322) ; Dallemand v. Saalfeldt, 175 Ill. 310, (51 N. E. 645, 48 L. R. A. 753, 67 Am. St. Rep. 214); Mundhenke v. Oregon City Mfg. Co., 47 Or. 127, (81 Pac. 977, 1 L. R. A. [N. S.] 278), and note; and the nature of the risks and dangers involved in such operation; as distinguished from the mere obvious physical construction of the machinery; Harney v. Chicago, R. I. & P. R. Co., 139 Iowa, 359; Latman v. Douglas & Co., 149 Iowa, 699; O’Connell v. Smith, 141 Iowa, 1; Lynch v. Lynn Box Co., 200 Mass. 340; (86 N. E. 659) ; Allen v. Jakel, 115 Mich. 484, (73 N. W. 555) ; Thompson v. Allis Co., 89 Wis. 523, (62 N. W. 527). Many cases are cited for appellant in which it is held under facts in some of them quite analogous to the facts of this case that even an immature person, with little experience, must be deemed as a matter of law to assume the risk- of his fingers being caught between .rollers about which he is working; the construction and action of the machinery being plainly
The question before us is one on which a multitude of eases, more or less in point, might be cited on either side; but the further citation of authorities would be of no advantage. It is enough to say that in the light of our own decisions in similar cases we have no difijculty in reaching the conclusion that the question of assumption of risk was properly submitted to the jury, and that the verdict is supported in the evidence. As distinguishing this case from many which are cited for the appellant, it may well be observed that plaintiff was a young girl, inexperienced with reference to machinery in general, and without knowledge of the particular danger involved in attempting to remove from the roller articles which would cling to it, unless such knowledge is to be imputed to her as a matter of law;' that the danger of having her fingers caught between the third roller and the cylinder of the mangle was not incident to the ordinary operation of receiving the articles as they usually came out of the mangle, and arose ■only when.the effort was made in special cases to prevent the articles from adhering to the third roller, and thus becoming wound up in the machine; that such operation was one necessary only in an emergency and requiring
As plaintiff was employed in the first instance for ironing by hand and continued in that employment for about four months, the manager had no reason to assume that she was familiar with the operation of a mangle and the dangers incident thereto. He testified that he made no inquiry of her on the subject when he directed her to work at the mangle, and gave her no warning or instruction as to the danger of such work. Under these circumstances, we have no occasion to discuss the question argued by counsel as to whether plaintiff was bound by representations made as to her experience by the girl who suggested her employment.
The court instructed the jury on the theory that the danger involved in working about this unguarded machine, like any other risk or danger of the employment due to the negligence of the defendant, might have been assumed by plaintiff, and left it to the jury whether, under the evidence, it had been so assumed. The question does not arise in this case whether, prior to the enactment of the recent statute abolishing the defense of assumption of risk as against negligence in properly guarding machinery, such defense was available to a defendant negligent in failing to provide such guard. We need not therefore follow counsel for appellant in their discussion of this subject, nor notice their criticism of our recent case of Stephenson v. Sheffield Brick & Tile Co., 151 Iowa, 371, in which wo announced as the result of prior recent holdings of this court “that an employee does not assume the risks incident to the use of a machine which is not guarded as required by statute, although he knows of the unguarded condition, and apprehends the danger incident to the use thereof.” It is perhaps proper to say, however, that the opinion in the case of Tyrrell v. Cain, 128 N. W. (Iowa), 536, cited in support of that proposition, has since been withdrawn on a petition for rehearing, and will not therefore appear in the official reports of the court. The opinions in these cases had not been announced when the present case was tried in the lower court, and a reannouncement of the views therein expressed is not involved in an affirmance of the rulings of the trial court. This is not said as indicating any doubt with reference to the last announcement of the court on the subject, but as a reason why a further discussion
The judgment is therefore affirmed.