Cargill ex rel. Cargill v. Philadelphia Towel Supply & Laundry Co. , 185 Pa. 269 ( 1898 )

Opinion by

Mb. Chief Justice Stbbbett,

This action of trespass, against the limited partnership association defendant, was brought to recover damages for personal injuries alleged to have been suffered by the plaintiff in consequence of certain negligent acts of omission and commission of the defendant, specified in the statement. Among other things, it is therein averred that, in May, 1895, the association defendant, then engaged in the laundry business, employed plaintiff “ to shake out towels; ” that a week thereafter she “ was taken from the employment of shaking out towels for which she had been hired and put by defendant to work on a machine known as a mangle, without having been given proper instructions how to work the said machine, and shortly after her employment on the said mangle her left hand was caught therein and drawn by the hot rollers up to the elbow, and the hand and arm were crushed and burned, so that the same were rendered useless forever.”

That said injuries were caused by the defendant’s negligence in the following particulars :

1. In taking the plaintiff, who was then a minor, from the employment for which she was hired, and putting her to a more dangerous employment, without having given her proper instruction as to the danger of the new employment, or as to the manner in which she should work upon said machine.

2. Said machine was negligently maintained by defendant, in that the protection or guard which should have been in place to prevent plaintiff’s hand from being drawn into said mangle had been suffered and permitted by defendant to be and remain away from its proper place.

3. Defendant took none of the ordinary and reasonable means, to prevent the accident and injury to plaintiff while working on said machine.

• The statement then concludes with averments as to the character and extent of plaintiff’s injury, the serious consequences that have resulted and are likely to result therefrom, et cetera.

Each of the foregoing averments of negligence was denied by the defendant; and thus the issues of fact were formed.

It is not our purpose, nor is it necessary, to either summarize- or review the somewhat voluminous testimony that was given on the trial. As to the general character and serious consequences of plaintiff’s injury, there was practically no conflict of testimony. As to the alleged negligence of the defendant, etc., it is sufficient to say that the evidence on behalf of the plaintiff tended to sustain her averments, while that of the defendant, tended to show the contrary. In brief, the evidence relating to the subjects of negligence, contributory negligence, etc., was more or less conflicting, and thus material questions of fact, were presented that were necessarily for the consideration of the jury. It is impossible to review the testimony without-being forced to the'conclusion that it involved disputed questions of fact which the court was bound to submit to the jury for their determination; and that was done by the learned trial judge in a clear and adequate charge that was quite as favorable to the defendant as it should have been. The only complaint that defendant makes is that he refused to withdraw the case from the jury by instructing them that “ under all the evidence the verdict must be for the defendant.” Four of the five-points for charge submitted by defendant and affirmed by the learned judge are predicated of facts that were necessarily for the jury. In the first, they were instructed that “ if the plaintiff went to work upon the mangle of the defendant, and continued at that labor without objection upon her part, she took the risk attendant upon the work, and cannot recover unless it. is proved that defendant was negligent in not providing proper ■ machinery for the work, or that the machine was defective, or • not in good working order.”

In the second, they were instructed that if the mangle upom which plaintiff was at work was defective, or not in proper.working order, it must be shown affirmatively that the attention of the defendant company was called to that defect and it refused or neglected to remedy it.

In affirming the third point, the jury were instructed in the words thereof: “If the mangle in which the plaintiff was injured was reasonably safe, according to the usages, habits and ordinary risks of the business in which the defendant was engaged, the defendant is not liable for an accident occurring thereon, and the verdict must be for the defendant.”

As to the facts of which these instructions are predicated there was considerable testimony, but it was more or less conflicting and, therefore, for the exclusive consideration of the jury; and their verdict shows conclusively that the facts referred to were not found as claimed by the defendant.

Without pursuing the inquiry further, it is very evident that the plaintiff’s case depended on questions of fact which the court was bound to submit to the jury. That was carefully and impartially done, and the result was that the controlling facts were determined in favor of the plaintiff.

It follows from what has been said that the judgment entered on the verdict should not be disturbed.

Judgment affirmed.