Larsen v. Bloemer

Plaintiff, by her guardian ad litem, sued to recover damages for injuries to her hand and wrist received while she was working at a machine known as a “mangle.” The ease was tried before a jury. A motion for nonsuit was granted in favor of May E. Bloemer, but judgment was given in favor of plaintiff against John H. Bloemer for twenty-two hundred and fifty dollars. From this judgment he appeals.

There were two causes of action pleaded. In the first it was alleged that at the time of the accident Bertha Larsen was -a minor, inexperienced in working about a mangle, and that she had never been instructed in the dangers or hazards of employment on or near said machine; that “the said mangle of the said defendant upon which the plaintiff was put to work was unsafe, defective, unsuitable and dangerous for such use, for the reason that the said mangle when once set in motion could not readily be stopped; there being no lever near the hand of the operator for that purpose; that the said lever had become broken or out of repair so that the mechanism for starting the mangle had to be put on by the operator •stooping down and with great force pushing or pulling it in place, and then in order to keep it in place was obliged to securely tie the same with a rope or string, and in order to stop the said mangle while in motion or in operation, was obliged to untie the said rope or string and with great force release the machinery and thereby stop the running of the mangle, which defective, unsafe and dangerous condition of said mangle and the apparatus and machinery thereof was

According to appellant, as there is no allegation that the-mangle was inherently dangerous, or that its use or danger were unknown to Bertha Larsen, she must have been guilty of contributory negligence in getting her fingers caught at all, and “plaintiff seeks to recover for that portion of the-injury occasioned to her hand by the alleged negligence of" defendant in maintaining the mangle in a condition so that it could not be readily stopped after the fingers were caught therein.” Appellants’ counsel assert that the courts of this, state do not recognize the doctrine of comparative negligence, and that plaintiff cannot recover for the portion of the injury caused by defendant’s fault, citing Hatch v. McCloud River Lumber Co., 150 Cal. 111 , [ 88 Pac. 355 ]; Sego v. Southern Pacific Co., 137 Cal. 407 , [ 70 Pac. 279 ]. But in neither of the cases cited did the obligation of an employer to his servant exist. Here the jury determined in effect that owing to the youth and inexperience of Bertha Larsen and defendant’s

This case in its facts is much like that of Sibert v. Scotland Cotton Mills, 145 N. C. 308 , [ 59 S. E. 79 ]. There the “shifter” for throwing the belt on and off the pulley was out of order. Plaintiff, while working about the machinery, was caught by the sleeve and his arm was drawn into certain cogs and injured by reason of the fact that the belt could not be quickly moved. There the learned court used the following language: “It may be conceded that the frames at which plaintiff was put to work were of proper construction and in good condition,- that there was no evidence on the part of defendant, either in respect to the frames or the travis gear; that defendant was guilty of no negligence in failing to instruct plaintiff in his work. It may be further conceded that his sleeve getting caught in the travis gear was an accident for which defendant was not responsible, or that plaintiff did not exercise due care to avoid the danger of getting caught in the cogs. The question arises whether there was negligence in permitting the levers of "the shifters, provided for the purpose of starting and stopping the frames, to be ‘out of fix,’ and whether such negligence was the proximate cause of the injury. It appears that the wheels, upon which were the cogs of the travis gear, move slowly, and that, if the shifters had been in good repair and had performed the office for which they were intended, the frames could easily have been stopped by pushing the lever, throwing the belt from the tight to the loose pulley, and plaintiff would not have sustained any injury further than tearing his shirt sleeve. The plaintiff, assuming, as we must do, the truth of his testimony, was pursuing instructions—working as directed by the ‘head boss.’ There is always more or less danger that employees working in mills, even when the machinery is in proper repair, will become entangled in the wheels, cogs, etc. This is one of the dangers incident to the employment. Where there is no negligence in respect to the construction, repair of machinery, or in failing to give instruction as to the manner of operating the machine, an injury sustained by the employee is attributed either to accident or the negligence of the employees. The risk of such injury is

In this case the court submitted to the jury (and we think properly) the questions of Bertha Larsen’s minority and her lack of instruction regarding the dangers of her employment. This was within the pleadings previously quoted. There was a conflict of evidence both as to her instruction or lack of it, and in reference to her knowledge of the dangers of putting her hand upon the rollers on the “receiving” side of the mangle where the clothes were taken out and folded after they had been ironed. With such conflict we have nothing to do if there is any evidence tending legitimately to sustain the plaintiff’s theories on these points. Bertha Larsen testified that she had received no warning or instruction with reference to the dangers to be encountered in working about the machine. At the time of the accident she had been employed by defendant just four weeks. She testified in part as follows: “I never paid any particular attention to the machine on the folding side because I did not realize there was any danger there where the clothes came out. The machine had just started up before I was injured and the rollers were turning very slowly. The rollers were covered with a canvas or cloth. That cloth would sometimes become wrinkled, and they were straightened out by our hands. If it was running we would do it while the machine was in operation.” Speaking of the manner in which her fingers were caught, she said: “I don’t know exactly how I got them in that day unless I was smoothing the cloth.” She was corroborated in many of her statements by other witnesses. We cannot, therefore, disturb the conclusions of the court and jury regarding her

We have carefully examined the instructions and find no errors therein.

There was some controversy with reference to an amendment to the complaint which, according to appellant’s counsel, was inserted in the record after the trial. Appellant filed an affidavit by the county clerk that said amendment was not permitted during or before the trial. This was met by a counter affidavit by respondent’s attorney to the effect that the amendment in question had been allowed at the trial, but had not been copied into the pleading by the clerk as ordered by the court. This matter was heard by the judge of the superior court at a time when counsel for all the parties were present and determined adversely to appellant’s contention. When and under what circumstances an order permitting an amendment to a pleading is made and the substance of such amendment, are matters peculiarly “within the breast of the court.” We will not disturb the correction in diminution of the record thus made.

The judgment is affirmed.

Lorigan, J., and Henshaw, J., concurred.