132 N.Y.S. 564 | N.Y. App. Div. | 1911
Plaintiff, defendant’s servant, recovered for injury resulting in the loss of his eye from a flying steel shaving, while using an air gun for chipping a flange on a boiler head pursuant to an order of defendant’s superintendent.
The plaintiff was injured on March 10, 1910; at which time he was about twenty-two years of .age. From his father’s business, that of a butcher, he went into the defendant’s employment. He testified that his duties required helping around the shop, in the matters pf cleaning, rigging, putting up machinery, errands, getting material, tools,- aiding boilermakers, drawing out and replacing tubes, drilling holes, connecting hose, holding lights. He did what would be demanded of a young man of progressing experience in the varieties of work for which the shop was- used. Some three or four months before the accident he had for a half hour used the air gun for chipping a relatively small plate. But at the time in question he was without further instruction directed by the superintendent to use the air gun to chip or to shove off that part of ■ a steel boiler head; laid down on barrels, as indicated by a varying chalk line. The court submitted to the jury only one question relating to defendant’s negligence, as follows: “Summing this up, you 'cannot charge the defendant here with negligence because of the flying particle unless you- are satisfied, first, that in the ordinary progress of that'work/that might reasonably be expected to happen at intervals; secondly, that -that had so frequently happened that the attention of employers and those engaged in the same line of boilermaking had been called to it, and that reasonable men had considered the matter and had provided some kind of appliance for the protection of workmen. You must go further, even, and find that some such appliance had been in common and ordinary use in boiler shops by men who were not in the boiler room 'alone but by men who, in the-boiler room, were engaged upon precisely the same work that the plaintiff was engaged upon when the accident happened. If you find, under this charge, that there was such common and ordinary use of an appliance, for protecting workmen, then if the defendant failed to furnish that appliance. the defendant would be negligent.
The judgment and order denying the motion for a new trial should be reversed and a new trial granted, costs to abide the. event.
Jenks, P. J., Carr and Rich, JJ., concurred; Woodward, J., dissented.
Judgment and order denying motion for new trial reversed and new trial granted, costs to abide the event.