Barrett Mfg. Co. v. Marsh

Mr. Justice Freeman delivered the opinion of the court. It is urged in behalf of appellant that it was not guilty of causing or contributing to appellee’s injury by any negligence whatever. It is not claimed that the machinery was in any respect defective or out of order. There is direct conflict in the evidence as to the position occupied by appellee when the accident occurred and as to the manner in which the paper was inserted within the rollers. We are compelled to the conclusion that the preponderance of the evidence is in favor of appellant upon the first of these questions of fact. The testimony of the superintendent and that of Camiato, the man who was on the platform north of the uprights supporting the rollers, contradicts appelleé’s statement that he was standing with one foot on an angle-iron and the other in the air, clinging to the structure with his right hand, while with his left he helped to adjust the sheet of paper between the rollers. It is probable from the evidence that his feet were not on the angle-irons behind or west of the rollers, as the superintendent thought they were, but appellee’s version as to his position is not corroborated by anyone, so far as we can perceive. It is said that if standing in the position appellee claims to have been, his hand could not have been caught as he says it was. It is possible, perhaps, as his attorneys claim, that by giving an upward twist to the end of the paper his hand might have been in position to be caught as it was, and the nature of the injury therefore throws little light on the question of his position. If he was where he claims, it would seem from his own statement that he had put himself in a position where he ran considerable risk of injury from the sprocket wheel and chains operating the rollers. There is conflict also as to the manner in which the paper was entered between the rollers, whether by using the lever and raising the top roller or whether it was done after the machine had been put in motion and the rollers were revolving. Here also there is at least no preponderance of evidence in appellee’s favor. Two witnesses testify that the sheet of paper was put through the pulling rollers before they were set in motion, that this was done by lifting the upper roller with the lever and then putting the paper through, that it was- done twice that way before the accident that morning, and that after the paper was so inserted the signal was given after warning everyone, and the machine was then set in motion. It had rim, it is said by appellant’s witnesses, one or two seconds, when appellee cried out and the machine was stopped. Appellee corroborated this by his own testimony on the direct examination, stating that when-—the paper not having been put in quite straight—the superintendent called t-o them to pull the paper out, “We raised the rolls up and pulled the paper out.” When asked who raised the rollers up, he answered, “The other man that was on the other side.” While in his cross-examination appellee denied this, stating that the machine was run backwards to run the sheet out, it is impossible to give the weight to the denial to which, except for his previous statement, it might have been entitled. Appellee is partly corroborated by one witness who says he saw them back up the machine to take the paper out. This witness does not, however, so far as we discover, state that when he saw the end of the paper come through the rolls twice, the machine and rollers were in motion. The significance of this evidence would appear to be that if the paper was inserted between the rollers by raising up the upper roller, inserting the paper and then lowering the roller again, and the machine was not started until after this was done and the paper properly adjusted, then appellee’s injury could scarcely have been caused, as he stated it was, by an effort on his part to insert the paper between the rollers while the machine was in motion, but in all probability must have occurred after the machine was in operation, and as the man closest to him says it did, because appellee was trying to push in after the machine started a part of the paper that was torn and “turned up.” If it be true that the machine was not in operation when the sheet of paper was being inserted between the rollers and that after this was done appellee and others were warned that the machine was about to be started and that after being so warned appellee put his hand of his own volition in a position to be caught, the resulting injury cannot be justly ascribed to any negligence on the part of appellant. It is contended in appellant’s behalf that in any event appellee assumed the risk. It is undisputed that appellee had previously worked in roofing paper mills, both in Johnstown, Pennsylvania, and this city, where there were machines with rollers, the only material difference between them and the machine in question being that in those machines the rollers were near the floor and in the case at bar the rollers by which he was injured were elevated considerably above the floor. While the latter were not so accessible, according to the evidence, in other respects their operation was similar. It is said there is no evidence appellee had any knowledge that there was dang'er connected with them. But the danger and its character were open and obvious and “where a servant is temporarily engaged in a more hazardous work than that for which he was employed he takes upon himself all such risks incident to the work as are equally open to the observation of himself and the master.” 2 Thompson on Negligence, p. 976, sec. 7. Consolidated Coal Co. v. Haenni, 146 Ill. 614; N. C. Ry. Co. v. Conway, 76 Ill. App. 621-624; I. C. Ry. Co. v. Brown, 107 Ill. App. 512-517; Republic Iron Co. v. Lee, 227 Ill. 246-259, and cases there cited. In the last mentioned case it is said that “even if the master fails in his duty to furnish the servant a place ordinarily safe in which to work and there are to the knowledge of the servant defects which render the place unsafe, the servant is held to have assumed the hazard, for he cannot go on with knowledge of the danger without complaint until he is injured and then hold the master liable.” See, also, Doolittle v. Pfaff, 92 Ill. App. 301-307; Ward v. Daniels, 114 Ill. App. 374-376. There were no defects in the machine in the present case and the danger of injury if a hand was caught between the rollers was not hidden, but patent to ordinary observation. Appellee states that he was called by the superintendent to “come over here and help put this paper in the rollers,” that he said he “didn’t know nothing,” meaning that he did not know whether he was wanted up there to put the paper through the rollers or to help to hold the paper up along the incline, and that he crossed over to the south side of the upright because ordered to do so by the superintendent. The mere fact that he “was directed on that occasion to work temporarily outside of his usual employment did not constitute actionable negligepce and the evidence showed no more than such a direction. * * * As to dangers which it requires no special intelligence to foresee, it is not material whether the servant is engaged in the performance of his regular work or not. He assumes the risk of any danger which is plain, open and apparent to his mind, although engaged in doing extra work or work outside of his usual employment.” C., R. I. & P. Ry. Co. v. Kinnare, 190 Ill. 9-13. Appellee was, however, injured by a danger which, as we have said, was open and obvious, the danger that if he allowed his hand to get between the rollers when they were in operation he would be so injured. That this was an open and obvious danger has been many times stated, in cases above referred to and others, where injuries have been caused in like manner by mangles and rollers of like character and purpose as those in question here. That a man of mature years, with appellee’s experience in mills where similar rollers were in constant use, needed to be especially warned that if he allowed his hand to get between such rollers he would be injured, is a proposition scarcely requiring serious consideration. The fact that the paper was softened by the heat and tar was also as open to his observation as to the master’s, and could not have been unfamiliar, in view of his very considerable experience in winding paper so treated as it came from similar machines. Appellant’s attorneys have cited a long list of cases where it has been held that a servant assumes the risks of dangers readily apparent to common observation, and where it has been held that dangers to be apprehended from revolving, machinery are open and obvious. In Reed v. Stockmeyer, 74 Fed. Rep. 186-189, the court said: “If, however, the servant be of mature years and of ordinary intelligence and experience, 'he is presumed to know and comprehend obvious dangers. In such case the master is not liable for injury happening to the servant in the performance of dangerous work without the scope of his engagement for service, merely because he has been directed by the master to perform such work. If the servant is possessed of knowledge and experience sufficient to comprehend the danger and without objection undertakes the service, the master is not liable for injury received by the servant in such new and more dangerous employment (citing cases). The liability upon the master in cases of injury to the servant received in a dangerous employment outside of that for which he had engaged arises therefore not from the direction of the master to the servant to depart from the one service and to engage in the other and more dangerous work, but from failure to give proper warning of the attendant danger in cases where the danger is not obvious or where the servant is of immature years or unable to comprehend the danger.” Some of the cases where the dangers from revolving machinery are held open and obvious as a matter of law are Johnson v. Devoe Snuff Co. (N. Jersey), 41 Atlantic Rep. 936-7; Greef v. Brown (Kansas), 51 Pacif. Rep. 926-7; Shine v. Gocheco Mfg. Co. (Mass.), 54 N. E. Rep. 245; McCarthy v. Mulgrew (Iowa), 77 N. W. Rep. 527-8; Hanson v. Hammell (Iowa), 77 N. W. Rep. 839-840; Blom v. Yellowstone Park Ass’n (Minn.), 90 N. W. Rep. 397-8. Complaint is made of an instruction which told the told the jury “that the risk which the sei-vant assumes as a part of the contract of employment is confined to the particular work and class of work for which he is employed,” and that if ordered to work temporarily where the work is of a different nature or character not within the scope of the employment he does not by obeying such order necessarily assume the risk. We deem the instruction misleading since under such conditions the servant does assume such risks as are open and obvious. For reason indicated, the judgment must be reversed, with a finding of facts. Reversed.