Willson v. Logan

Mr. Presiding Justice Holdom delivered the opinion of the court. The testimony.of plaintiff’s witness, Mrs. Louise Berquist, is clearly incompetent. While formerly in the employ of defendants, she had not been employed by them at any of the times when plaintiff worked there. Notwithstanding she worked the machine and had knowledge of its condition, such working and knowledge were at a time previous to the time of appellee’s employment and working upon the machine. The inquiry should have been directed to the condition of the machine at the time of the accident to plaintiff. Of this condition Mrs. Berquist had no knowledge. She was necessarily ignorant as to what changes had been made in the meantime. The machine had been moved from the place it was in when she operated it to another building; it had been used by various persons unknown to her. She had no opportunity of knowing what changes had taken place in its working or mechanism. Her evidence on these matters was all given over the objection of defendants’ counsel, and allowed to remain in the record after a motion to strike it all out at its conclusion. Allowing the evidence to be given over the objection of defendants and failing to strike it out on a motion so to do was error. An examination of the photograph of the machine found in the record, and of the" evidence in relation to its working and operation, demonstrates that it is a machine of simple device, not complicated in its mechanism and not fraught with danger to any ordinary person when operated with due care, and that the manner of flattening the eyelets in the cards with the machine did not require the putting of the fingers in any position so that the descending plate would strike them. All the dangers in working the machine were open, apparent and obvious to' every reasonably intelligent person, young or old. The only danger to be encountered was in getting the hand or fingers between the plate and the shoe at the time the plate descended to flatten the eyelet. The doing of this work did not require the operator to put either fingers or hand under the descending plate nor within eight inches of the edge nearest the operator, nor to put them in any place of danger when operating the machine with due care. Plaintiff claims that she was employed to do what is called, in the language of the shop, “table work.” As to this she has no corroboration. On the contrary, Willson testifies that she was not hired to do any particular kind of work, hut was first engaged in doing “table work.” Plaintiff says that on the day she was injured she worked on the machine “flattening eyelets” against her protest, fortified with her tears. But Cullen, the foreman, who, she says, compelled her to work on the machine on the day of her misfortune, denies her statement in this regard. Willson swears that plaintiff requested him to let her work on the machine in the place of Fannie Latchell, who left her work in August; that between that time and November 9th, plaintiff worked part of the time on both machines, and from the latter date until the day of the accident was regularly at work upon them. In this Cullen, the foreman, corroborates Willson. Cullen put her to work on the machine, and he says she seemed pleased to get the work, never complained either about the work, the machine or its operation. The fault found with the machine in its being out of repair plainly could not have been contributed to cause the accident. The top plate refused to ascend when down on the shoe without being readjusted; that is said to have been the trouble with the machine. Even were it so, we cannot discover how such condition could contribute in the slightest degree to cause plaintiff’s injuries. It did not operate to draw her fingers into the machine, and unless her fingers were there before the plate struck the shoe, the accident could not have happened. Cullen and Willson both testify that before the machine was again put in motion, after the accident, they examined it and operated it for fifteen minutes, and found it without defect and in working order. They directly testify that the “shoe” was in place at the time of the accident, and that while there were no strips to hold the shoe in place, its weight was sufficient for that purpose. The contention of plaintiff that she was injured on the so-called “old machine” is not sustained by the proofs. The actual situation of the two machines becomes a controlling factor in determining at which of them plaintiff was working at the time she was injured. The overwhelming weight of the evidence of those who had the best means of knowing their situation, many of the witnesses being entirely disinterested, is against the claim that plaintiff was engaged in working on the “old machine,” and fully sustains the claim of defendants that it was the “new machine” at which the accident occurred. Plaintiff’s version cannot be accepted against the testimony to the contrary of six witnesses, whose veracity has been in no way impugned. It is apparent, however, that if it may be conceded, for the sake of argument, that plaintiff was at work on the old machine, and that it was out of repair in the manner detailed by plaintiff and her sister Jennie, that the accident cannot be attributed in the remotest degree to such defect. The relation of cause and effect which alone constitutes actionable negligence is not present. Such defect was not the proximate cause of plaintiff’s injury. If plaintiff brought on her injuries by her own negligence, so far as defendants are concerned she must be regarded as not having received them. R. R. Co. v. Harris, 53 Ill. App., 592; C. & A. Ry. v. Becker, 76 Ill., 25. Before plaintiff can recover on any theory of the case she must prove not only that the defect was present, but that it was the cause of her injuries. R. R. Co. v. Dixon, 49 Ill. App., 299. It is plain that plaintiff could not have suffered the injuries which she did except by design or negligence. The testimony of the witness Ford has some bearing upon the want of care on the part of plaintiff at the time of the accident. Plaintiff’s eyes were evidently not upon her work to guide her hand. Ford says she was looking out of the window at the time. This may reasonably account for the happening of the accident, especially when viewed in the light of plaintiff’s inability to account for the position of her fingers or how they got into the machine when they were injured. While there is nothing in the evidence tending to prove that plaintiff was not a girl of ordinary intelligence, and she was admittedly within four months of attaining her majority, there is evidence of her own that she is neither very observant or a close reasoner. This appears from her answer to the following question. “Q. Did you know if you put your fingers in where the cards were—■ where the eyelets were being flattened—did you know you would get hurt? A. Ho, I never thought of that.” That one’s fingers would get hurt in such a position is patent to the most immature mind. With the knowledge that eyelets were flattened by the descending force of the plate upon the shoe which plaintiff had from many months of practical experience, it is incredible, to our mind, that she could have been so calloused to her own safety as not to have had impressed upon her mind that her fingers would receive any but the same kind of treatment as the eyelets, if allowed to get in a like position. We cannot agree with counsel for plaintiff that their client was inexperienced in the work she was engaged in on the day of her injury. The evidence in the record forbids our so doing. Plaintiff was required to use only such care as a person of her years, intelligence and experience would ordinarily use under like circumstances. What is ordinary care, however, depends upon the circumstances of each case. Here Ave find a minor, it is true, but one of maturity at that, Avithin four months of her majority, working in the sight of a machine many months and for many weeks operating it daily. As before said, the machine was simple in construction and operation. Its one danger so open and obvious, viz.: that of getting one’s fingers between the shoe and the perpendicularly moving plate, that a much younger person than plaintiff would be chargeable with knowledge of such an obvious, danger. The so-called mangle cases are in point on this question. In Jones v. Roberts, 57 Ill. App., 56, a sixteen-year-old girl was injured by letting her hand come in contact with a hat cylinder. The verdict of the jury Avas against her, and in affirming the court say, had a verdict been rendered in her favor, “it would have been the duty of the court to set it aside.” Ward v. Daniels, 114 Ill App., 374, was another accident in a “laundry mangle,” the injury occurring by drawing the hand of the operator between the cylinder and the steam chest, crushing it. A judgment of $3,000 was reversed, without remanding, because the court found that the cylinder was open and exposed toward the operator. Its dangers were obvious and the risk therefore assumed. On the theory that plaintiff was employed to do the work at which she was engaged at the time of receiving her injuries, by like reasoning she assumed the risk of the dangers which were open and obvious to her. Utica Hydraulic Cement Co. v. Whalen, 117 Ill. App., 23; Brown v. Siegel, 191 Ill., 226; Montgomery v. Barringer, 218 ibid., 327; Christiansen v. Graver Tank Works, 223 ibid., 142. Christiansen- lost his arms in the cog wheels of a machine at which he was working, in the discharge of the duties of his employment, yet the court denied him the right to recover damages because of his knowledge that the cog wheels were upon the machine, and that the dangers were apparent and obvious to him, and therefore, in law, he assumed the risk of the employment at which he was injured. In so far as the trial court refused to instruct the jury as requested, as to the application of the doctrine of assumed risk to the facts in evidence, it committed error. The greater weight of the evidence establishes the fact that plaintiff was put to work upon the machines at her own request, and that work upon such machines was in the line of her employment at the time of the accident. That such work was regarded as carrying with it higher duties and degrees of responsibility than did the doing of “table work” may be extracted from the undenied evidence tending to show that after working two weeks on the machines, plaintiff’s wages were increased and again raised about two weeks before the accident. A careful examination of the evidence in this regard convinces us that the verdict of the jury is manifestly contrary to its preponderating weight. For the reasons appearing in this opinion, the judgment of the Circuit Court is reversed and the cause remanded for a new trial, conformable to the views herein expressed. Reversed and remanded.