115 N.Y.S. 291 | N.Y. App. Div. | 1909
This action is by a. servant against master . for negligence. A notice under the Employers’ Liability Act was served. The servant worked at a mill that was one of a series, all worked by a shaft that ran underneath them, and driven by steam power. The mill consisted of two rollers turning toward one another in the same plane. The rollers were of iron, 12ijr inches in diameter and 36 inches long. There was a clutch and pinion wheel on the shaft, which transmitted power to a large gear wheel which turned the back roller, which worked another gear wheel that turned the front roller. The servant’s work was to feed the rollers from above with crude pieces of rubber to be ground down. The distance between the rollers could be changed by screws, and on the day .of the accident the plaintiff had spaced them at -J an inch. While at his work the plaintiff’s right hand Was caught in the rollers, and then his left hand, so that he lost his right hand 3 or 4 inches above his wrist, and the thumb, the first, the middle finger ' and a part of the palm of his left hand. The learned trial court at the close of the case submitted ' certain specific questions to the
“1. Was the plaintiff himself guilty of any negligence that contributed in any degree to his getting hurt ? ” “ No.”
“ 2. Was the plaintiff’s hand caught solely on account of the negligent failure of the defendant to maintain the bearings of the back roller in a condition reasonably safe for the plaintiff to work upon the mill ? ” “ No.”
“ 3. Was there a negligent failure on the part of the defendant to maintain in reasonable * safe condition a shifter for detaching the clutch that the plaintiff could have operated after his right hand was caught to stop the mill, and thereby prevented his being injured to the extent that he was in jured ? ” “ Yes.”
“ 4. Did the plaintiff assume the risk of injury from worn bearings of the back roller, if you find such worn bearings existed ? ” “No.”
“ 5. Did the plaintiff assume the risk of injury from the absence of the shifter, if you find that it was absent ? ” “ No.”
“ 6. What is a fair compensation for any injury that you may find that resulted solely from the negligence of the defendant, if any such be found by you?” “ $10,000.”
“ The Court: In fixing this sum of $10,000, I want it understood whether the jury have fixed those damages with reference entirely to the damage which happened from the lever not being there.- Do you understand ? You have said that the plaintiff’s hand was not caught on account of any negligence connected with the roller. That question you have answered, ‘ No; ’ so, of course, you could not give any damages for his hand being caught in that way. Therefore, the damages that you have found must necessarily be the damages which came from the négligence in not having the shifter there, and which would be only for a part of the damage. You understand that, do you ? (The jury answer in the affirmative.) ” The learned counsel for the appellant admits in his points that-the jury were “ clearly justified in finding that the mill in question was not equipped with ‘ a shifter, for detaching the clutch that the plaintiff could have operated after his right hand was caught to stop the mill,’” but contends that “a finding that there was ‘ a neg*104 ligent failure on the part of the defendant ’ to provide or maintain such a shifter is wholly unwarranted by the evidence.” This contention rests upon the proposition that under the circumstances such a device could not have been worked by the plaintiff to throw out the clutch "after his right hand had been caught. And it is-pointed out that there is testimony that before the jaws of the clutch became worn by use, the pressure (10 to 25 horse power) dui’ing the grinding was so great that one man could not have thrown out the clutch by the shifter. But, on the other hand, the plaintiff’s witness Beyer, who had worked in the defendant’s, shop as a machinist and was familiar with this particular mill, testifies that assuming the mill to be loaded (i. e., grinding down the rubber) and a shifter on the clutch, that shifter could be thrown out by an ordinary man with one hand. And the defendant’s witness Bolton, a master mechanic in the defendant’s employ, on cross-examination, after he had stated that when the mill was loaded the clutch could not be thrown out, was asked : “ Q. It is a fact, isn’t it, that when these lugs or ears are worn some, it slips out itself? A. I just stated in a case where the lugs are worn'—■ Q. The lugs were worn in that case ? A. They were worn in that case. By the Court: I could not say whether they were worn enough so that a. man could throw it out. If the rest of the jaw was parallel it could not be thrown out.” Beyer, who had been called in to examine this .mill-the day before the accident, testifies in detail as to the worn condition of several of its parts, and says, among other things, “ The ends of. tlie lugs of the clutch were worn about a quarter of an inch.- * * * Bight on the far end. They were worn about a quarter of an inch — the ends of this.” “ When there is a wear on the lugs of the clutch they could be repaired by taking a hammer and chisel and chipping the lugs of the clutch straight. I have not seen them doing that only' once.”
The plaintiff finally testifies, although his testimony is not clear nor consistent upon this point, that the mill was not loaded —- that the rubber slipped down as his hand went in. But whether the machine was “loaded” or not, the evidence did not justify the court in withholding from the jury the .question as to the shifter on the ground that it could not have been worked by one man at the time. There is no. dispute that if the mill was not loaded (i. e.,
It is next argued that even if the clutch could have been used by one man, the evidence does not warrant a finding that the plaintiff could have used it after his right hand was caught. This, argument rests primarily upon two bits of testimony: First, the testimony of the plaintiff, “ From the point where I was caught in the rollers the shifter was about four feet and a half or five, as near as I can get; ” second, the evidence that to disengage the clutch it was necessary to push the shifter from the operator a distance of from 20 inches to 2 feet farther away from the point where the plaintiff was caught. The conclusion drawn is that it would have been necessary for the plaintiff with his, right hand caught in the rollers to have extended his left hand toward his right side a distance of at least 6 or 7 feet from the point where his right hand was caught. But in the first place nothing is more inaccurate than a witness’ estimate of distance (Moore on Facts, § 397; citing The Royal, 54 Fed. Rep. 204, 206; Carlisle v. Cooper, 19 N. J. Eq. 256, 267; Blatch v. Archer, 1 Cowp. 63, 65; Chrystal v. Troy & Boston R. R. Co., 105 N. Y. 164, 170), and demonstrations which are based upon such estimates are only as cogent as the estimates are certain. Further, the plaintiff admittedly was at work feeding the rollers which were but 3 feet long, and there is no question but that 'he stood within the space they occupied. If the shifter was not there, of course the ability of the plaintiff to use it is conjectural. On the one hand, there was evidence that the plaintiff under the conditions could not have reached it to work it. On the other hand, the defendant’s expert Smith testifies to the court, “ I presume he could get hold of it if he had his right hand caught in the rollers, but I have never known it to be such. The question is, could he shove it over two feet, if he had hold of it. * * * If it was unloaded, he possibly could shove it over with his hand in it. I have my doubts about it.” To defendant’s counsel: “We will say if he was right at that end, he might possibly reach it. * * * He could reach it as it was engaged, and in order to disengage it he would have to push it two feet.” The defendant’s expert Yorhies on cross-examination, referring to the clutch, says: “ The operator, standing in front of the mill, could throw it out, if he stepped over to the clutch. If he
It is further contended that the absence of the shifter was not the proximate cause of the accident, and that there is no principle which permitted the jury to speculate whether the in juries were greater because of such absence. The plaintiff is not suing because of the accident, but because of the injury arising therefrom wjiicli is attributable to the negligence of the defendant. It is true that if the plaintiff’s hand had not been caught .and if he had'not attempted to release it , he would not have been injured, and that the jury have exonerated the defendant from negligence so far as the catching of the right hand is concerned. But the accident of having the hand caught was the condition not the cause of the injuries. It was not the causa causans but the causa sine qua non. Under the instruction of the court, the jury acquitted the defendant of negligence, save as to the omission of a. shifter, and only compensated the plaintiff for such injuries as resulted
I think that it cannot be said that the damages as found could not and did not represent the compensation tor the injury caused by the negligence of the defendant. For, although the jury absolved the defendant from negligence in the maintenance of the back roller, it yet found it negligent in not providing a shifter, and avowedly assessed the damages for that negligence- alone. It could have found, as I have said, that the shifter could have been used 'to stop the machine before the injury to the right hand was so severe, and have determined the compensation in view of the'increased injury to the right arm and in view of the entire injury to the left hand. Or it could have determined the compensation upon the injury to the left hand alone. I think that the amount, $10,000, cannot be said to be excessive in view of the seriousness of such injuries which I have already" told. And I think that the jury could thus eliminate the damages, i. e., determine compensation for the negligent omission to supply a shifter, although it acquitted the defendant of negligence in maintenance of the roller. As to the principle»
Upon a former appeal herein (reported in 118 App. Div. 891) we affirmed- -an order of the Trial Term for a new trial, not upon the proposition that the plaintiff’s theory was necessarily so .counter to a physical and scientific fact as to be incredible as matter of law, but in that it appeared that the trial court granted the order upon the question of the weight of the evidence..
The judgment and orders are affirmed, with costs.
Present— Hirschberg, P. J., Woodward, Jenks, Rich and Miller, JJ.
Judgment and orders unanimously affirmed, with costs.
Sic.