Allen v. Hixson

The bill of exceptions alleges error in sustaining a general demurrer to the plaintiff’s petition, the substance of which appears in the official report. Assuming as true the plaintiff’s allegations, we agree with the trial judge that she did not set forth a cause of action. It affirmatively appears that it was her duty to feed the machine by which she was injured, and it is a legitimate inference that it was also incumbent upon her to inform the superintendent that this ma*463chine was out of order. Beyond this it can not be gathered from her petition that anything more was required of her. It is therefore clear that she was not injured while in the performance of any duty growing out of the service in which she was engaged. It follows that the master was under no duty of protecting her against injuries received while she was, as a mere volunteer, endeavoring to accomplish something entirely outside the scope of her employment. The act which caused her injury was certainly one of this kind, for, in taking hold of the unwrapped cloth for the purpose of showing the superintendent the condition of the machine, she volunteered to perform a service not required of her, and therefore necessarily acted upon her own responsibility and at her own risk. It makes no difference that the machine had a defective part of wdrich she was ignorant; for its existence could not, on the occasion referred to in her petition, have-.been the source of injury to her if she had confined herself to the performance of the duties pertaining to the service for w'hieh she was employed. As will have been seen, plaintiff was an adult, and actually knew, when she approached the machine, that it was out of order. Recognizing the danger of attempting to operate it in that condition, she prudently refrained from so doing, and made a prompt report to the superintendent in regard to the matter. Unfortunately, however, she did not continue to exercise the same degree of prudence when she went outside the scope of her duties, and, without any direction or request on his part, volunteered to assist him in ascertaining precisely the extent and character of the derangement which had brought about the condition in which she had found the machine.

As to so much of the petition as claims damages because the “defendant negligently allowed petitioner’s hand and wrist to remain between said roller and bar,” or because of the defendant’s “ negligently failing . . to effect her release,” we do not think a good cause of action is set forth. When an employee, without fault on the master’s part, becomes placed in a dangerous or painful situation, the master is under no positive legal duty of exercising all reasonable care and diligence to effect such employee’s speedy release. Being in no way responsible for the unfortunate occurrence, the master can not be said to *464be guilty of a tort if he does not promptly take active steps in corning to the rescue. The only duty arising under such circumstances is one of humanity, and for a breach thereof the law does not, so far as we are informed, impose any liability.

Judgment affirmed.