
    Case 102. — ACTION BY NORA A. BROWN AGAINST THE ROSS- ' PARIS CO. FOR DAMAGES' FOR PERSONAE INJURIES.—
    January 25.
    Ross-Paris Co. v. Brown.
    Appeal, .from Jefferson Circnit Court, Common Pleas Branch, Third Division.
    Matt O’Doherty Judge.
    Judgment for plaintiff. Defendant appeals.
    Affirmed.
    1. Master and Servant — Using Dangerous Machinery — Knowledge of Superiors — Obvious Danger — 'Liability of Master — In an . action by a servant against -his master for an injury received in using dangerous machinery, the rule is that where a servant- proceeds under the express orders of his superior in performing an act where he is exposed to unusual danger, and sustains an injury from it, the master is liable unless the risk of the act was realized by the servant, or was. so apparent, that no man of ordinary prudence, .situated as " he was, would have undertaken it. '
    2. Pleading — Necessary averments — -In an action by a servant against his -master for -an injury in the use of dangerous or defective machinery an averment in (the petition “that the dangerous condition of the machinery was known to the master and his agents superior to the -plaintiff, but was unknown to the plaintiff,” is usually sufficient without averring that he could not, by ordinary care, have known of such defect and danger.
    3. Inspection of Machinery — Duty of .servant — In an action by a .'servant against his master for an -injury -by the use of dangerous or defective machinery, the rule is that if inspection is not in the line of duty of the servant, and the defect or danger is not so obvious or patent that the performance of his duties would 'make it known to him, or in the course of ibis work and as a natural incident to it he should know it, he may recover.
    
      4. Instructions — Ordinarily, in cases of ths sort, the instructions should submit to the jury the question whether the servant knew the danger, or whether it was so obvious- that in the course of his employment by ordinary care he should have known it.
    5. Errors Not Prejudicial — Under the statute a judgment shall: not be reversed for 'an error not prejudicial to the substantial rights of the party complaining.
    FOROBT & FIELD for appellant.
    BENNETT H. YOUNG and M. W. RIPY for appellee.
    (No briefs in the record.)
   Opinion by

Chief Justice Hobson

Affirming.

Nora Brown had been working for appellants in their laundry about six or seven months as an ironer. Her business was to iron ladies’ clothes on a table and board. One morning the girl who worked at the mangle was absent, and the forewoman said to-Miss Brown: “I wish you would go to the mangle,, as I am short of girls this morning.” The mangle is a large roller through which the clothes are run. The-mangle was out of order.-' It was not drying the-work, and complaints were coming in from the linen-room to the forewoman. Some half hour after Miss-Brown went to the mangle the forewoman came to it and saw that it was jumping and not running-smoothly as it ought to run. She then said to Miss-Brown: “You go to Mr. Enny, the engineer, and tell him I say to please come and fix this mangle, because-it needs fixing. There is danger about it.” Miss-Brown went to the engineer, who refused to come,, and told her to tell the: forewoman not to bother him about the mangle; that he was not going to fix it. She came báck and told the forewoman what the engineer said, and thereupon the forewoman said to her: “Go or there and work that mangle any how. Go on there and feed those napkins. Either do that or go.” Miss Brown said: “All right; I will work” — and returned-to the mangle and began feeding the napkins in it. In a short time, by reason of the defective condition of the mangle and its jumping'as she was feeding a napkin into it, her hand was drawn into’the machine. The hand was badly burned and tom. It was a question submitted by the physicians whether the hand could be saved; but it was finally concluded that by a secondary operation, taking the fingers off at the joints, the hand might be saved. This was done. She suffered very intensely. She was in bed about three months, and at the time of the trial a year afterwards had not been able,to work any more. She could not bend her hand, and could only use her -thumb. She was earning $14 a month at the time. She knew nothing about the machinery, and, although she had worked at the mangle occasionally before, the danger of its use was not explained to her, and she did not know what was the matter with it. That the mangle was out of order, and had been for some days, and that this was known to her superiors, is pretty clearly shown. The jury found for her a verdict of $2,000, upon which the' court entered judgment, and the defendant appeals.

It is insisted for the appellants that the court should have given a peremptory instruction to the jury to find for them, on the ground that the evidence showed that the plaintiff knew of the danger, and therefore could not recover. There would be great force in this, if the plaintiff had not been- peremptorily ordered by the forewoman to go on with the work at the mangle. The rule is that, where a servant proceeds under the express orders of his superior in ¡performing an act whereby he is exposed to unusual danger, and sustains an injury from it, the master is liable, unless the risk of the act was realized by the servant, or was so apparent that no man of ordinary prudence, situated as he was, would have undertaken it. (Long’s Administrator v. Illinois Central Railroad Company, 113 Ky., 806, 24 Ky. Law Rep., 567, 68 S. W., 1095, 58 L. R. A., 237, 101 Am. St. Rep., 374, and authorities cited. In the case at bar it is very clear that the girl whose business it was to iron at the; table, did not realize the. risk of operating the mangle in its defective condition, and the danger, was not so apparent that a person of ordinary, prudence, situated as she was, would not have undertaken it. It is true the forewoman said to her, “there is danger about it,” when she sent her to the engineer; but she did not explain to her what the danger .was, and, when she came back from the engineer, ordered her to go on and work at the mangle. When she did this, the girl had a right to assume that the forewoman would not order her to do anything that would impéril her safety. (Brice v. L. & N. R. R. Co., 9 S. W., 288, 10 Ky. Law Rep., 526.)

It is .also insisted that the petition is defective, be-' cause it simply averred that the dangerous condition of the mangle was known to the defendants and their agents, superior in authority to plaintiff, but was unknown to plaintiff. It is insisted that it should have been averred, in addition, that she could, not by ordinary care have known of the defect in the mangle. The instructions to the jury followed the language of the petition, and it is insisted that they were also defective in not submitting to the jury the question whether the plaintiff by ordinary care might have known the danger. The rule that a servant can not recover when he understood the danger is based upon the idea that he assumed the risk. Whether the servant knew or did not know a given-fact is not always susceptible of direct proof, for the mental processes can not be laid bare. Therefore.it is often said that a man is held to know “what the surrounding circumstances show he ought to know. But after all, this is a mere rule of .evidence, and the averment in the petition that the plaintiff did not know the danger, and that the defendants did know it, is usually sufficient. The rule is that if inspection is not in the line of duty of the servant, and the defect or danger-is not so obvious or patent that the performance of his duties would make it known to him, or in the course of his work, and as a natural incident to it he should know it, he may recover, (Kentucky Freestone Company v. McGee 118 Ky., 306; 80 S. W., 1113; Ahrens & Ott Manufacturing Company v. Rellihan, 82 S. W., 993, 26 Ky. Law Rep., 919, and cases cited.) Whether the servant by ordinary care should have known the danger will depend upon the nature of his duties, as well as the nature of the defect and the other circumstances stirrounding the servant. The court plainly told the jury that if the plaintiff failed to use ordinary care for her safety she could not recover, and he also plainly told the jury that if she knew the danger she could not recover. There was nothing in the case to impose on the girl the duty of inspection of the machinery. The real question in the case was whether she knew the danger. The jury found she did not know it. Their finding would have been manifestly the same if the qualification insisted upon by appellants had been made to the instruction.

Oridinarily, in cases of this sort, the instructions should submit to the jury the question whether the servant knew the danger, or whether it was so obvious that in the course of his employment by ordinary care he should have known it. This is the' rule laid down in the older cases,- and the later cases were not intended to depart from the rule. But in this case, as the servant acted under the' direct command of her superior, in lieu of the instructions given the court should have told the jury that they should find for the defendants if the danger was realized by the servant, or was so apparent that a person of ordinary prudence, situated as she was, would not have undertaken it. This, under the evidence, would have been no more favorable to the defendants than the instructions the court gave. Under the statute a judgment shall not be reversed for an error not prejudicial to the substantial rights of the party complaining, and on the whole case wé do not see that the jury could have possibly been misled.

Judgment affirmed.  