Hanson v. Hammell

Ladd, J. 1 This appeal was taken April 20, 1897, from a judgment entered November 14, 1896. The appellee asks that the cause be dismissed because the-abstract was not filed thirty days before the October term, 1897. As the May term of this court began May Sth, the cause could not have been docketed for that term, but necessarily came on at the October-term. Section 28 of the rules of this court provides that: “If an abstract of the record is not filed by the appellant- - thirty days before the second term after the appeal was taken, unless further time is given by the court, or a judge thereof, for cause -Jiown, the appellee may file an abstract of such matters of record as are necessary, or may file a copy of the final judgment or order appealed from, notice of appeal and return of service thereof, certified by the clerk of the trial court, and cause the case to be docketed and the appeal upon motion shall be dismissed, or the judgment or order affirmed.” Code, section 4120. We have held this section mandatory, and that the [173] application for extension of time must be made before the period allowed has expired, and upon notice to the adverse party. Newbury v. Manufacturing Co., 106 Iowa, 140. What is the first term “after the appeal was taken?” An appeal is taken and perfected by the service of notice in writing on the adverse party, or some one representing him, and on the clerk of the court where the proceedings are pending. Rules, section 13; Code, section 4114. “A notice of appeal must be served thirty, and the cause filed and docketed fifteen, ■ days before the first day of the next term of the supreme court, or the same shall not be submitted at that term, unless the parties consent thereto. If the appeal is taken less than thirty days before the term, it must be so filed and docketed for the next succeeding term.” Hules, section 15 ; Code, section 4116. The first term to which an appeal can be taken, then, in the absence of an agreement, must necessarily begin thirty days Or more after the notice of appeal has been served. If served before the immediate term following, but within thirty days of the first day, the case must be “docketed for the next succeeding term.” In such a case the notice .is served before the immediate term, but that is not the term to which the appeal is taken, .and at which the cause may be submitted. Undoubtedly, the abstract should be filed in time for the first term at which the cause may be submitted, but, as a matter of indulgence, the possible advantage of a hearing in this court is not lost if this is done in time for the next term. While the meaning of the statute and the rule is not free from doubt, we think the first term contemplated that to which the appeal might have been taken by serving the proper notice thirty days before its first day, and the second term that immediately following. In the case at bar the notice was served less than thirty days prior to the May term, and therefore the first term to which “the appeal was taken” was the -October term, 1897. [173] II. The plaintiff, a woman of twenty-one years, had been employed at the defendants’ laundry for a period of nine [174] months. During that time she had often used the ironing mangle. We may not be able to describe this machine well without the use of a photograph. It consisted of one steam-heated cylinder about seventy-two inches long and eighteen inches in diameter, over which were three rollers, each about six inches in diameter, and of the same length. The rollers were solid, covered with canvas, and blanketed. The large cylinder has a highly polished metal surface. The machinery was put in gear so as to revolve the cylinder and rollers on ball bearings by a sliding pulley and pedal resting on a lever. By touching the right end of the pedal, they were thrown in motion, and stopped by touching the left end. It was impractical to remove any of them because of the difficulty in readjusting the space between the rollers and the cylinder. In ironing, a box was used in 'front for protection in putting in the clothes, and on the other side was a table to catch these as they came through. The rollers are so close to the cylinder that sheets and pillow slips and other clothes are ironed as they go through. On the fifth day of Miarch, 1895, the defendants’ foreman directed the plaintiff to bring beeswax and sapolio from the second floor, where she was working, to the first floor, and clean the mangle. This she had never done before. The box in front had been removed. There was starch on the large cylinder, and sapolio was used in removing it. After having cleaned and wiped the cylinder, the plaintiff took beeswax in her right hand, and applied it to the cylinder, while wiping and smoothing it on the surface with a cloth in her left hand. Dor this purpose she had put the cylinder in motion, and, accidentally getting her left hand too near the small rollers, it was caught and drawn in, and thereby seriously and permanently injured. She had received no instructions with respect to the danger in so using the machine, but, from her use of it in ironing, knew that her hand would be injured if caught between the rollers and the cylinder. She testified: “I could see the rollers plainly and could see the clothes go in, and knew if I put my fingers there they would go in just like the clothes. * * * [175] I knew if I put my fingers in that roller, I would get them smashed. I knew it all the time. It did not require any experience to tell that.” She also testified that she was cautious in handling the machine, and that, to put the beeswax on properly, the cylinder must be turned; also that she was watching her hand carefully at the time it was caught. Just what surface of the large cylinder wás exposed is not clear. One of the defendant firm testified it woiild be about one-half, while plaintitif says it was not very much. The appellants insist that the evidence discloses no negligence on their part, and in this they are confirmed by the record. Calling the plaintiff from her customary employment, and directing the temporary work of cleaning the mangle, was not a negligent act, unless in doing so her employers omitted some duty to her as their employe. Thus, if the work ordered was of a .dangerous character requiring peculiar skill in its performance, and she did not possess the requisite knowledge or skill ' to do it with safety, and this was known to her employers, or might reasonably be supposed to have been known to them, then they would be liable, even though the employe undertook the work without protest. Railway Co. v. Adams, 105 Ind. 151 (5 N. E. Rep. 187); Lalor v. Railway Co., 52 Ill. 401; Railway Co. v. Bayfield, 37 Mich. 205; O’Connor v. Adams, 120 Mass. 427; Railway Co. v. Fort, 17 Wall. 553. If, however, the servant is competent to comprehend the danger, or, in fact, knows it, the master is not liable. This is because he is not required to point out perils which are apparent, or which the servant may reasonably be expected to know. In Cole v. Railway Co., 71 Wis. 114 (37 N. W. Rep. 89), it was held that “when an employe of mature years, of ordinary intelligence and experience, is directed to do a temporary work outside of the business he has engaged to do, and consents to do such work without objection on account of his want of knowledge, skill, or experience in doing such work, no negligence of the employer can be predicated upon that state of facts alone.” In that case the servant’s ordinary employment apprised him somewhat of the perils of the temporary [176] work he was doing when injured. Had the temporary work been entirely different in kind, and the perils not obvious, and of such a character that the servant could acquire no knowledge of them in the ordinary business in which he was engaged, or if forced to perform such temporary work against his protest, the rule might be different. Paule v. Mining Co., 80 Wis. 350 (50 N. W. Rep. 190); Leary v. Railway Co., 139 Mass. 587 (2 N. E. Rep. 115). It was said in Cummings v. Collins, 61 Mo. 523 : “The defendants are not liable for any injury resulting from- causes open to the observation of the plaintiff, and which it required no special skill and training to foresee were likely to occasion him harm, although he was at the time engaged in the performance of a service which he had not contracted to render.” The rule seems to be well settled that if the employe knows, or may reasonably be supposed to know, the dangerous character of the temporary work to which he is called, the employer is not negligent in requiring the work without explaining its character. Wormell v. Railway Co., 79 Me. 397 (10 Atl. Rep. 49); Leary v. Railway Co., supra; Rummell v. Dilworth, 111 Pa. St. 345 (2 Atl. Rep. 355); Cahill v. Hilton, 160 N. Y. 512 (13 N. E. Rep. 339); Newbury v. Manufacturing Co., 100 Iowa, 441. In the case at bar the jolaintiff was familiar with the working of the mangle. She knew how to run it, and knew the danger of allowing her hand to be caught between the rollers and the cylinder, as she states in her testimony. Indeed, this was apparent to any intelligent person of mature years. Eor what purpose, then, warnings, orally or in posted rules ? These could have added nothing to her information of the perils of her employment. If there was insufficient space on the cylinder to apply the beeswax safely in turning it, this was obvious to her. True, in ironing, she had the protection of the box in front, but the removal of this was known to her. Whether it would have been practical to clean the cylinder from the discharging side is doubtful, as this would have required the removal of the table, and the performance of the work from beneath, while the lever for [177] starting and stopping tbe machine was on the other side. Besides, the possibility of so doing was as evident to her as to the defendants. She undertook to apply the beeswax from the front, the dangers of doing which were obvious; and she cannot be heard to complain because some other method was not pursued. The beeswax could have been safely applied had she, in doing so, exercised care commensurate with the danger of having the hand caught. The particular peril attending the performance of the work as she did it was apparent to her and fully comprehended, and for this reason any admonition on the part of the defendants as to the manner of doing it was unnecessary. Bohn v. Havemeyer, 46 Hun. 557; Thompson v. Allis Co., 89 Wis. 523 (62 N. W. Rep. 527); Fones v. Phillips, 39 Ark. 17; Engine Works v. Randall, 100 Ind. 293. — Reversed.