Basel v. Arsonia Clock Co.

144 N.Y.S. 434 | N.Y. App. Div. | 1913

Burr, J.:

A machine properly guarded within the meaning of the requirements of the Labor Law^* is a machine guarded against accidents which may be reasonably expected to occur, or which in the exercise of reasonable care the master should have anticipated were likely to occur. While the machine in this case was guarded to an extent, it was not guarded sufficiently to prevent the hand of plaintiff’s fellow-servant, when it slipped, from coming in contact with the lever and causing the plunger to descend, with injurious consequences to plaintiff. In view of the evidence that articles from time to time fell to the floor, which it was necessary for some one to pick up, we think that it was a question of fact for the jury rather than of law for the court as to the master’s duty in the premises. (McEwen v. Borden’s Condensed Milk Co., 154 App. Div. 185.) While the jury might well have found a verdict for defendant, it reached an opposite conclusion, and we do not feel justified in setting its conclusion aside as against the weight of the evidence. The judgment and order appealed from should be affirmed, with costs. Jenks, P. J., Carr and Rich, JJ., concurred; Thomas, J., dissented. Judgment and order affirmed, with costs.

* See Consol. Laws, chap. 31 (Laws of 1909, chap. 36), § 81, as amd. by Laws of 1910, chap. 106; since amd. by Laws of 1913, chap. 286.—[Rep.