291 N.Y. 40 | NY | 1943
Lead Opinion
Plaintiff brought this action to recover damages for injuries and inept and unprofessional medical attention received while engaged in her duties as a domestic servant in the employ of the defendants. She was injured while washing kitchen utensils with a defective wire-mesh soap pad which defendants furnished for her use. On the first occasion she used the appliance, loose ends of wires detached from their fastenings punctured her thumb and fingers, then broke off and remained imbedded therein. Her mistress undertook personally to treat her for her injuries without furnishing medical attention until after a serious infection developed which necessitated operations to remove the wire particles and substantial medical treatment to reduce the infection.
Plaintiff, previous to the occasion of her injury, had been accustomed to use wire mesh pads with handles attached for removing grease from kitchen utensils. She had never seen or previously used an appliance like the one from which she received her injuries. Her mistress furnished the new one without an attached handle to replace one with a handle no longer fit for use. Although there was no obviously defective appearance or loose wires readily apparent, plaintiff objected to using the new appliance, since it was unlike any such appliance that she had seen or used before, but her mistress assured her that it was all right, and safe and suitable for use and directed her specifically to use it. In the absence of knowledge of a defective condition which would warrant a definite choice, plaintiff was bound to use the appliance furnished by her mistress as she was directed to do. *43
There is no evidence that the article was such a simple household article in common use as to absolve the mistress from liability for negligence as matter of law. So far as the record discloses, no similar appliance had ever before been used by anyone. These wires were either broken and loose at the time the pad was given to the plaintiff or became broken and loose from use, but there is no evidence as to which happened. Whatever happened occurred on the first occasion of the use of the appliance. Whether the wires broke because the appliance was not suitable for the use to which the plaintiff was required to put it, or whether they were broken when she started to work with it, the result is the same. The fact that the wires broke or came loose during ordinary usage or were loose when she started to do her work is sufficient to raise a question of fact as to whether or not the appliance was unsafe for use when it was delivered to the plaintiff.
Defendants were presumed to know any danger which a reasonable inspection would have disclosed (Kirby v. Montgomery Brothers Co.,
Whether the defendants exercised such care under all the circumstances in this case as was required of them on the record as we now find it, whether their neglect, if any, in providing and directing the use of the article, or failure, if such there was, to make an adequate inspection was the proximate cause of the accident, whether the servant assumed the risk or was guilty of contributory negligence under the circumstances here disclosed were questions of fact for the jury.
The judgment of the Appellate Division should be reversed and the order of the Trial Term affirmed, with costs to the appellant to abide the event.
Dissenting Opinion
The plaintiff, employed in domestic work, was injured while cleaning kitchen tinware by the aid of *44
a steel-wool pad. This particular kitchen utensil — known in trade as "Good Old Soap Pad" — had no features which were complicated. It had been purchased by the plaintiff's employer who delivered it to the plaintiff with instructions that it be used. Previously her employer had supplied the plaintiff with a pad similar in type but to which a handle was attached. No evidence was introduced in behalf of the plaintiff to establish the fact that when such kitchen utensils are used it is common practice to have handle attachments. Nor is there evidence that the pad used by the plaintiff was defective, unless it can be said that a strand of steel wool loosened from the pad is a defect. I find it difficult to conceive of a cleansing utensil more simple than the one here involved. To charge the mistress of a household with actionable negligence in circumstances such as those which gave rise to the present action would require an employer of domestic help to be an insurer against all defects in tools and utensils of the simplest type. The law imposes no duty so drastic. I think that reasonable care — not the highest efficiency which skill and foresight can produce — is the measure of duty owed by such an employer in the selection of the simple articles by which household work is done. (Carlson v. PhoenixBridge Co.
Accordingly, I dissent and vote for affirmance.
LOUGHRAN, CONWAY and DESMOND, JJ., concur with RIPPEY, J.; LEWIS, J., dissents in opinion in which LEHMAN, Ch. J., concurs.
Judgment accordingly. *45
