37 N.Y.S. 458 | N.Y. App. Div. | 1896
The action arises out of the relation of master and servant. Defendant, among other things, manufactured steel tubes and
The injury was received in this wise: Plaintiff had drawn five or six tubes when he noticed that one was scratched; he called the foreman’s-attention to it; it was decided that the fault was in the die, and plaintiff was directed to remove the die and take it to the machine room and have it polished. He adjusted the wheel to stop the machine and supposed that it was stopped. "Whether the piston head was at the head of the machine- when plaintiff left it is not clear, nor is it important here, for wherever" it was, only the closest observation could detect that it was in motion, and it is doubtful if its motion was apparent to the naked eye. Plaintiff procured the die to be polished and returned to the machine. When he returned the piston head was about midway between the head'of the machine and the-die. Plaintiff, with the assistance of one Reilly, a helper about the machine, proceeded to place the die in position. In doing this he held the die in with his left hand on the inside of the die head,, while Reilly screwed in the die from the outside. While his hand was in this position, the piston head was stealing noiselessly upon it. Plaintiff says he first felt it upon his hand, then he tried to pull it out, could not, called out, seized the wheel with his right hand, turned it in the wrong way, and. his hand was crushed. While the evidence was in many respects conflicting, and that upon essential features of the case, the foregoing statement must be regarded as fully established by ■ the evidence-. The charge of the court fairly submitted to the jury the question whether defendant was guilty of negligence in placing plaintiff at work upon the machine without warning of the dangers which existed in its operation, without instructions as. to the difficulty or impossibility of exactly centering the valves, and without notice of the fact
A more serious question arises .respecting the amount of the verdict. It was the left hand that was injured. The physicians who attended plaintiff testified that the middle finger was amputated; that-he has only partial motion of. the first and third fingers; 'that' .the joints are permanently -stiff, the power- of the. hand materially '-.affected, and much pain attended the injury. His services were worth tWenty-five dollars. Edward Miller, a physician called for the defendant, stated that he examined the hand eleven weeks after the injury/ found the middle finger of the left hand had been ■ amputated at the junction of the hand-with the finger, the first and third fingers had scars on the palmer surface and the tendons Which extend the fingers' were partially contracted, but the boheswere in good condition'and the fingers were not absolutely stiff at the time. He could flex his fingers and move ’them back and forth about half way; that continual motion of the fingers would havp overcome the ■stiffness* existing at the-trial. Plaintiff testified that he had-terrible pain for about two weeks, and for five weeks after he had his finger amputated; that -he has no pain in his hand now, except when he tries to straighten his fingers ; that he has continually tried the movement of his' fingers since his injury. The thumb and little finger were not injured.. He has been unable to work as before and cannot use the hand to advantage. We have recently had ■occasion to state the rule which governs in this class of causes and it would serve no useful purpose, to restate it. (De Wardener v. Met. Street Ry. Co. 1 Appi Div. 240.) Applying that rule to the evidence in this case we think the verdict excessive in amount. (Murray v. H. R. R. R. Co., 47 Barb. 196; Coppins v. N. Y. C. & H. R. R. R. Co., 48 Hun, 292.)
;Ohr conclusion, therefore, is that the judgment and order appealed
All concurred.
Judgment and order reversed and new trial, ordered, with costs to abide the event, unless plaintiff stipulates within twenty days to reduce the verdict to $5,000, in which case the judgment as reduced is affirmed, without , costs to either party.