114 Ill. App. 374 | Ill. App. Ct. | 1904
delivered the opinion of the court.
The negligence charged in the first count of the declaration, the only count under which any evidence was offered, ivas that the defendant negligently, etc., “failed to maintain on said mangle machine a proper safeguard to the rollers of said machine, which safeguard it was possible to maintain,” by reason whereof plaintiff was injured, etci The only evidence tending to support "this count was the testimony of a witness that he had once seen upon a Crawford mangle a brass pipe, placed half an inch in front of the steam chest and half an inch from the surface of the cylinder as aforesaid, to prevent the hand or arm of the feeder passing between the cylinder and the steam chest. No such guard, or guard of any kind was ever on a, mangle of the defendant, nor so far as appears from the evidence, was ever used upon any Crawford mangle, save on the single occasion testified to by the witness. Under the rule laid down by the Supreme Court in Chicago & Eastern Ill. R. R. Co. v. Driscoll, 176 Ill. 330, there could be no recovery in this case for a failure to have a guard or guard rail on the mangle.
But even if there was evidence from which the jury might find that the failure of the defendant to have a guard on the mangle amounted to and was negligence, still the plaintiff could not recover in this case. The danger to -be apprehended and avoided by one engaged in feeding the mangle in question was, that in placing articles on the cylinder the hand of the feeder might be drawn between the cylinder and the steam chest and thereby be crushed, and burned. This danger was obvious and apparent to appellee, was incident to her employment and was assumed by her as one of the ordinary risks of the service. Jones v. Roberts, 57 Ill. App. 56, and cases there cited.
The mangle was in the same condition on the day of the injury that it had been during the four months in which appellee had been engaged in feeding it. Nothing unusual occurred immediately before the accident, and the accident could only have occurred by appellee permitting her hand to remain so long on the cylinder that it was carried to the steam chest. This could have happened only through the carelessness or inattention of appellee and such carelessness or inattention was such negligence on her part as to prevent a recovery. Beidler v. Branshaw, 200 Ill. 425; C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492.
The judgment of the Circuit Court will_be reversed with a finding of facts.
Reversed.