Empire Laundry Machinery Co. v. Brady

Mr. Justice Waterman delivered the opinion of the Court.

We think that the jury were warranted by the evidence in finding that the deceased came to his death by reason of negligence of appellant.

The deceased was not a mere volunteer; he not only had an interest in the work appellant was doing, but he was specially asked by appellant’s agent to assist him in his work. Street Ry. Co. v. Bolton, 43 Ohio State Rep. 224.

The jury have found that the machine was not properly set up and fastened to the floor with reference to the purpose for which it was adapted and intended. It was because of such negligence that it was thrown over and Brady caught by the belt.

The jury have found that the deceased could not have avoided the accident by the exercise of ordinary care and prudence. There is no evidence that Brady either knew that the machine was insufficiently fastened, or that his knowledge of machinery was such that he must be presumed to have so known; the defect was not, so far as is shown, obvious to a person of ordinary intelligence, or the superintendent of a laundry.

It is perhaps the case that appellant owed, in respect to this.machine, a duty only to Wilson & Fuchs, with whom it contracted, and that if the deceased had been injured when merely operating the wringer for his employers, appellant would not have been liable; we are not called upon to consider such a case. The mangle was in care of appellant when Brady was injured; its agent procured the assistance of the deceased, put him at work about a machine which it , had insufficiently sustained, and which it must be presumed it knew was not sufficiently fastened for the work then put upon it. The case is very different from that of Heiser v. Kingsland, 110 Mo. 605 , and others to which our attention is directed.

"We find no error in the giving or refusing of instructions warranting a reversal of this judgment, and it is affirmed.

Shepard, J., dissents.