86 N.Y.S. 127 | N.Y. App. Div. | 1904
The plaintiff was injured while in the employ of the defendant, and brings this -action to recover damages.
The complaint alleges the giving of a notice of the time, place and cause of the injuries to the plaintiff, in the manner and within the time provided by the Employers’ Liability Act (Laws¡of 1902, chap. 600), and that defendant was negligent in omitting its duty of seeing .that its “ways, works and machinery” were proper and in proper condition. There is a further allegation that the “ garnet machine,” by which plaintiff was injured, was insufficiently protected and was improper and insufficient for the purposes for which it Was used.
The injury occurred in November, 1902, after the Employers’ Liability Act became a law, and the complaint must, we think, be construed as stating a cause of action founded upon that act.
The plaintiff failed to prove the cause of action which he alleged.
A garnet machine is one used for picking and cleaning wool, and consists of a series of picking cylinders standing about twenty-two inches from the floor. It was the custom in defendant’s mill for an employee to crawl under the machine and lie on his back and clean these cylinders from underneath while they slowly revolved. It was while doing this that the plaintiff’s foot was caught between the cylinders and he was injured.
There was no' proof that this machine was not in proper repair, or that it was improper or insufficient for the purpose for which it was designed, or that the plaintiff was injured because it was insufficiently protected. There was no obligation on the part of the defendant to guard .these cylinders, against an employee, the contact with which
The. judgment and order must be reversed and a new trialgranted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.