U.S. Supreme Court Butler v. Frazee, 211 U.S. 459 (1908)
Butler v. Frazee
Argued December 3, 1908
Decided December 21, 1908
211 U.S. 459
ERROR TO THE COURT OF APPEALS
OF THE DISTRICT OF COLUMBIA
The common law rule of assumption of known risk by the employee has never been modified by statute in the District of Columbia, and even if hardship results, the Court must enforce the rule.
One understanding the condition of machinery and dangers arising therefrom, or who is capable of so doing and voluntarily, in the course of employment, exposes himself thereto, assumes the risk thereof, and if injury results, cannot recover against his employer.
Although the plaintiff, if of full age and understanding, may testify to the contrary, where the elements and combination out of which the danger arises are so visible and have been of such longstanding that the dangers are obvious to all, the question is one of law for the court, and the judge should instruct the jury that a verdict for plaintiff cannot be sustained.
In this case, held that an employee in a laundry, who had been employed in laundries for two years and was familiar with the machinery used therein, could not recover for injuries received by a machine on which she had been working for three months, and the imperfections, if any, of which she did not at any time report to her employer.
25 App.D.C. 392 affirmed.
The facts are stated in the opinion.
MR. JUSTICE MOODY delivered the opinion of the Court.
The plaintiff in error brought an action against the defendant
in error in the Supreme Court of the District of Columbia, in which she sought to recover damages for injuries suffered by her while in the defendant's employ. The injuries were incurred while the plaintiff was operating a mangle in the defendant's steam laundry. The function of the machine was to iron and dry clothes by drawing them between a cylinder and a series of rollers. The cylinder was of steel, four feet in diameter and eight feet long and heated by steam. Above and in contact with it were five rollers. When in motion, the cylinder and the rollers revolved inwardly. In front of the cylinder and closely fitted to it was a feed board, twelve to fifteen inches wide and eight feet long. It was the duty of the operator of the machine to spread the damp article to be ironed upon the feedboard and push it forward until it touched the cylinder, by whose motion it was drawn upward to the point of engagement between the cylinder and the first roller, thereby being drawn through between the cylinder and the rollers. For the safety of the operator, the machine was equipped with a finger guard, which was a bar of steel eight feet long, three inches wide, and one-eighth of an inch thick, extending from side to side of the machine, and about four inches distant from the revolving cylinder. The guard was painted red. It was adjustable, and could be set at a height above the feed board of from one-fourth of an inch to four inches, depending upon the thickness of the clothes to be ironed. On this mangle, the guard had always been adjusted at a height of one and one-half inches above the feedboard. The various parts of the machine described and their relation to each other and the mode of operation were in plain view of the operator. The plaintiff was twenty-two years of age, apparently of full intelligence, and, before entering the employ of the defendant, had had two years' experience in the operation of mangles in other establishments. She testified that those mangles were equipped with finger guards which prevented the operator's hands from coming into contact with the steam cylinder, and that she had never known of any injury happening to an operator by contact
with the cylinder. She received no instructions or warning of any danger. When she was set to work upon the mangle in October, 1902, the feedboard was loose, thereby permitting clothing occasionally to drop between its edge and the steam cylinder. This condition continued unchanged until the time of the plaintiff's injury, and it was not reported or complained of by her. In the following December, she was injured. The only testimony as to how the injury occurred was given by the plaintiff herself, and was stated in the bill of exceptions as follows:
"A. Why, the morning of the accident, nearly every piece we put in the mangle, Miss Cumberland's end would go in before mine, and I would have to push, and my hand caught on . . ."
"A. The morning of the accident, nearly every piece would catch on Sidney's side before it would catch on mine, and the tablecloth would take my hand right on up with it. It dropped down between the board and the cylinder, and when it caught, it carried my hand right on up with it. . . ."
"A. Well, the linen would drop down between the board and the cylinder and you had to push it up."
"Q. Do you mean us to understand that you put your hand deliberately inside this finger guard and down into the space between the feedboard and the cylinder?"
"A. No, sir."
"Q. How did the linen drop?"
"A. The linen, instead of going in, would drop down between the board and the cylinder, and you would push it up, and the young lady working on the other side, hers would catch before mine."
"Q. You had to get hold of the end in some way to push it up?"
"A. No, sir; you had to push it up the feedboard."
"Q. If the edge of the linen you were feeding had dropped down between the feedboard and the cylinder, how could you push it up?"
"A. You could push it up, and it would come down wrinkled."
"Q. If it had dropped down between the feedboard and the cylinder, how could you push it up?"
"A. It dropped down between the feedboard and the cylinder, and when you pushed it up and it came out of the mangle, it would come out wrinkled."
"Q. You did not hold the table cloth as it fed into
"A. Yes, I had hold of the tablecloth."
"Q. You pushed the tablecloth over the feedboard; but you could not catch hold of it, as a matter of fact?"
"A. I had hold of the tablecloth and was pushing it up and it dropped. And this day, it was worse; every piece we put in, it dropped down and we had to push it up, and as I pushed it up, in some way or other it took my hand with it."
"Q. You say it was getting worse?"
"A. Yes. We had to sprinkle the clothes every day, and this day we had to sprinkle the clothes more than ever."
"Q. And that is the only day you put your hand inside the finger guard?"
"Q. Why did you put your hand inside then?"
"A. I didn't put my hand inside. The tablecloth pulled it in. My hand was on the tablecloth pushing it up, and the tablecloth caught and it caught my hand with it."
"Q. On this particular occasion, even you didn't push your hand inside the finger guard?"
"A. No, sir; I didn't put my hand under the finger guard until the tablecloth pulled it under."
"Q. So the tablecloth had hold of your hand before your hand had gotten past the finger guard?"
"A. The tablecloth dropped, and I gave it another push to make it catch, and after it dropped, it caught it on the cylinder and carried my hand right with it."
"Q. So that your hand had gone past the finger guard before the tablecloth caught it and carried it into the mangle?"
"A. The tablecloth took my hand right along with it."
"Q. What I want to find out is the exact time that this tablecloth became wrapped around your hand in such a way as to take it into that mangle?"
"A. The tablecloth dropped. Sidney's end had gone in, and my end had dropped, and I pushed it, and it caught. As soon as the tablecloth -- it caught, and, after it caught, in some way it took my hand right up with it."
"Q. Where did it drop? Between the feedboard and the cylinder?"
"A. Between the feedboard and the cylinder."
"Q. And it was not until after it dropped that your hand was caught?"
"A. It dropped between the feedboard and the cylinder, and I had my hand on the feedboard to make it catch, and my hand caught and went right up with it. "
The plaintiff offered the testimony of expert witnesses, who said that no kind of laundry work required the finger guard to be more than one-half an inch above the feedboard. Apart from the extent of the injuries, this was all the evidence tending to sustain plaintiff's cause of action. The presiding judge directed a verdict to be returned for the defendant. Upon exceptions, this ruling was sustained by the court of appeals, and the case was brought here by writ of error.
The evidence tended to show that, in one respect, at least, the machine operated by the plaintiff was out of repair. The feedboard was loose, thereby permitting the fabric to be ironed sometimes to drop between it and the steam cylinder. How far this was a cause contributing to the injury does not clearly appear, and, at the bar, it was not relied upon as the cause of the plaintiff's injury. This was the prudent attitude, because the ill repair of the machine in this respect, and the effect upon its operation, were in existence from the first, and well known to the plaintiff, and she failed to report or complain of the defect to her employer. Washington &c.; Railroad Co. v. McDade, 135 U. S. 554 , 135 U. S. 570 . The single ground upon which the plaintiff's right to recover was rested was that the guardrail was adjusted at an excessive height, so that it would permit the plaintiff's hand to be drawn between it and the feedboard up to the point of engagement between the revolving cylinder and rollers. The judgment of the court below went against the plaintiff upon the theory that she assumed the risk of this danger, and that is the question to be considered. One who understands and appreciates the permanent conditions of machinery, premises, and the like, and the danger which arises therefrom, or, by the reasonable use of his senses, having in view his age, intelligence, and experience, ought to have understood and appreciated them, and voluntarily undertakes to work under those conditions and to expose himself to those dangers, cannot recover against his employer for the resulting injuries. Upon that state of facts, the law declares that he assumes the risk. The rule is too well settled to warrant an
extensive discussion of it or an attempt to analyze the different reasons upon which it has been held to be justified. The rule of assumption of risk has been thought by many a hard one when applied to the complicated conditions of modern industry, so largely conducted by the aid of machinery propelled by irresistible and merciless mechanical power, and the criticism frequently has been made that the imperative need of employment leaves to the workman no real freedom of choice, such as the rule assumes. That these considerations have had an influence is shown by the notorious unwillingness of juries to apply the rule, and by the legislative modifications of it which, from time to time, have been made, as, for instance, by Congress in the safety appliance law. Schlemmer v. Buffalo, Rochester &c.; Ry. Co., 205 U. S. 1 . But the common law in this regard has not been modified in the District of Columbia, and we have no other duty than to enforce it. No question has been made in the case at bar that the rule prevails and is relevant to the facts of this case. The contention, however, is that, as the plaintiff testified in substance that she did not know and appreciate the danger which she was encountering, that testimony, with the other facts in the case, raised an issue for the jury, and that it could not be said, as matter of law, that the risk had been assumed. This contention is sustained by a well considered case. Stager v. Troy Laundry Co., 38 Or. 480. See Fronk v. Evans Steam City Laundry Co., 70 Neb. 75.
Where the elements and combination out of which the danger arises are visible, it cannot always be said that the danger itself is so apparent that the employee must be held, as matter of law, to understand, appreciate, and assume the risk of it. Texas & Pacific Ry. Co. v. Swearingen, 196 U. S. 51 ; Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155. The visible conditions may have been of recent origin, and the danger arising from them may have been obscure. In such cases, and perhaps others that could be stated, the question of the assumption of the risk is plainly for the jury. But
where the conditions are constant and of long standing, and the danger is one that is suggested by the common knowledge which all possess, and both the conditions and the dangers are obvious to the common understanding, and the employee is of full age, intelligence, and adequate experience, and all these elements of the problem appear without contradiction from the plaintiff's own evidence, the question becomes one of law for the decision of the court. Upon such a state of the evidence, a verdict for the plaintiff cannot be sustained, and it is the duty of the judge presiding at the trial to instruct the jury accordingly. Patton v. Texas & Pacific Ry. Co., 179 U. S. 658 , and cases there cited. The case at bar falls within this class.
The plaintiff was a person of mature years, intelligent, and of adequate experience. She had worked for some months upon this particular machine, and, during that time, it was always in exactly the same condition in which it was upon the day of the injury. The elements out of which the danger arose were plainly visible to her. The employer had no duty, statutory or otherwise, to use a rail to guard against so obvious a danger as that arising out of two cylinders in contact with each other and seen to be revolving inwardly. Hickey v. Taaffe, 105 N.Y. 26. We see nothing in the manner of the adjustment of the guardrail which constituted an allurement or was calculated to blind the plaintiff to the danger. The adjustment of the parts of the machine was continually before her eyes. The danger of being drawn between the cylinder and the rollers by contact with the cylinder was illustrated to her every minute of the day by the drawing in of the clothes to be ironed by contact with the revolving cylinder. The distance between the guardrail and the feedboard was constant, and its relation to the thickness of her hand was apparent. She must have understood that, if her hand became inextricably entangled with the clothes, as seems from the rather vague testimony of the plaintiff was the case here, it would be drawn between the cylinder and receive the injuries which unhappily occurred.
We think that it must be said as matter of law that she voluntarily assumed the risk of the danger. Tuttle v. Milwaukee Railway, 122 U. S. 189 ; Crowley v. Pacific Mills, 148 Mass. 228; Gleason v. Railroad, 159 Mass. 68; Connolly v. Eldredge, 160 Mass. 566; Lemoine v. Aldrich, 177 Mass. 89; Burke v. Davis, 191 Mass. 20.