133 A.D. 565 | N.Y. App. Div. | 1909
Lead Opinion
This action was brought to recover for personal injuries sustained by the plaintiff, a boy about nineteen years of age. He was born in Russia, had learned there the trade of a carpenter, and at the time of this accident had been in tiffs country about nine months. He was employed by the defendant and had worked for a' little over three weeks, using ordinary carpenter tools. The plaintiff testified that on May 14, 1907, the defendant’s superintendent or manager came to him when he was at work in the defendant’s factory and gave him a drawing from which he told plaintiff to make a crate for a desk. On this drawing there was indicated the length, height and breadth of the crate. The superintendent told plaintiff where the strips were to be, how broad the slats were- to be, and directed lfim to go to a machine and make it. The plaintiff asked where the machine was and the superintendent pointed it out to him, and went with the'plaintiff and showed him where the wood was, and then said: “ Go and make this tiling.” The superintendent gave plaintiff no instruction as to working the machine and gave him no assistant to assist in the. work; but simply told him to go and make the crate with the wood .supplied by the use of the machine. When plaintiff got to the machine he found it was not running, but on investigation he found there was motive power which could be applied, and finally got it .started. .He had never worked on such a machine before and knew nothing about its management. The machine consisted of a circular saw, and with it plaintiff was to cut boards which were about eight feet long lengthwise. Plaintiff .cut one of these boards and in cutting the other as it got to the end of the board the cut end hung down over the machine and he had to hold it in place with his hands; that as he was pressing down on the board to hold it in place the board commenced, as the fitness said, to “ jump,” and in trying to'hold it his fingers were thrown against the saw which resulted in the right index finger being cut off and his thumb severely cut; that in consequence of the accident he has lost the use of his thumb and has since been unable to work at his trade. A witness was called who was familiar
The plaintiff had given to the defendant the notice required by the Employers’ Liability Act (Laws of 1902, chap. 600), in which it is claimed that he was injured through the negligence of the defendant’s superintendent in directing the plaintiff to work this machine without any instructions or warning as to the danger connected with it and the amount of care and caution to be observed. I think there was a question presented for the jury as to whether or not the defendant’s superintendent Was negligent in directing the plaintiff to work at a machine of this character without any instructions or warning, or without the assistance that the proper working of the machine required. . It is quite true that the danger of the plaintiff’s hand coming in contact with the saw was quite apparent, but I do not think it can be said to be apparent to a person who is not accustomed to the use of machines of this kind that a board when extended over the table would “ jump ” up so as to throw the operator’s hand against the saw. When sending a man who was entirely unaccustomed to operating a machine of this kind to operate it for the first time ordinary prudence would suggest that the operator be given some instruction as to the proper way to manage the machine or be furnished with a helper to avoid the danger of the end of the wood
I think the judgment should be affirmed, with costs.
' Laughlin and Clarke, JJ., concurred; McLaughlin and Houghton, JJ., dissented.
Dissenting Opinion
(dissenting):
Action'to recover damages for personal injuries.- .Defendant operates" a factory for doing cabinet work. Plaintiff is a carpenter and at" the time he was injured was about nineteen years of age, had worked at his .trade between four and five years, and -was employed by the defendant. On ■ the day of the accident lie- was directed to make a crate in which to pack a desk, according to a certain diagram given him, and for that purpose was told to- go to a machine which consisted of an ordinary buzz. saw. with ai table and prepare the necessary strips of lumber. These strips were made by cutting, with the buzz saw, an ordinary soft wood board from six: to eight feet long and one inch thick into- slats two inches wide or a little less.. While, doing this work his hand came in contact with the buzz saw, which resulted in an injury to the thumb and the loss of the index finger. He had. a recovery of $3,000,.
The plaintiff testified that he did not know if he got Ms fingers. against the saw that it would cut them off, and if he had 'known such would be the result, lie would not have -operated the machine. To use Ms -own language*: “ If I had known that if I got my finger-up against the saw it would -cut it off, I should not lia-v-e gone to-the machine. It was not plain to me that if the saw struck my finger it would cut it, I didn’t see that. I knew the saw would cut the wood.” A -carpenter, nineteen years of age, of ordinary intelligence (and the plaintiff so far as the evidence discloses had at least that degree) does not need to he told that fire will burn, water will run down hill, -or if -he pu-ts Ms hand upon a buzz saw twelve to-eighteen inches in diameter, when revolving between 3,000 and 4,000 times a minute, he will be injured.
The plaintiff’s testimony is incredible, and the court was not bound to submit it to the jury. He was charged with knowledge- and presumed to know that if his hand came in contact with the-saw he would be injured. (Williams v. D., L. & W. R. R. Co., 116 N. Y. 628; Crown v. Orr, 140 id. 450.) Upon his own testimony the plaintiff was not entitled to recover and the evidence does-not sustain the verdict.
I think the court erred in permitting the witness Martin to answer,, against defendant’s objection and exception, the following question : “How, what is that well-recognized custom when cutting strips of wood eight feet long into two-inch strips ? * * * A. The common custom is to take stock of any width that is within the capacity of the table, move the rip-saw guide to the distance from the saw that is required for the strips; run the piece of stock against the saw and against the guide. If that stock is -eight feet long, it requires an expert man to saw that strip eight feet long without assistance at the back of the table, for tlie reason that the piece over-balances on the table and it is unsafe, but1 an expert man can use a push-stick, laying it firmly on the piece he is sawing and pushing it clear of the saw.”
For the same reason it was error to permit the witness to testify that' in sawing 'lengths of -eight feet it was customary to have a person on the other side of the machine to take the strips as they were sawed. Also, after the witness had stated that “ push-sticks ’ were sometimes used, in then saying that if such sticks were used, the operator “ is in no danger with the stick. His hands are all clear of the saw.” •
The judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide event.
Houghton, J., concurred.
Judgment and order affirmed, with costs..
