37 N.Y.S. 316 | N.Y. App. Div. | 1896
Lead Opinion
This action is servant against master to recover damages for personal injuries. The plaintiff, a boy of sixteen years, Was employed to- work a power press, which is set in motion by pressure
It is charged that the plaintiff was negligent in two respects: The first is that he placed his thumb under the plunger, while lie , was instructed to take the disk between his finger and thumb when placing it on the die, by which only the soft parts of the fingers ■would be exposed. Plaintiff, denies this instruction, and claims, that his thumb was necessarily. exposed. The jury saw the press operated at the trial and could determine whether its proper operation placed the thumb. of the plaintiff in danger. The second ■claim is that the plaintiff knew of the defective character of the ' press, and with that knowledge continued to work on it. We think that this was not conclusively established, but was a question for the jury to determine. Doubtless the plaintiff knew the press had been defective, but, according’ to .his testimony on his complaint,, the press was repaired by the machinist,, whose duty it was to care for and repair the machines. Plaintiff was then told to go to work, and worked on the press for about an ■ hour before the accident occured. By his statement, during all this period the press continued to “ click.” To charge him "with negligence • it was not only necessary to show that he knew of the “ clicking,” but also that he knew that the “ clicking ” imported that the machine was dangerous. Hot only does plaintiff swear that he did not know this fact, but it was a question most seriously litigated at the trial, the
As to the defendant’s negligence, it is undisputed that if the plunger moved without pressure on the treadle the press was defective. It was alleged that.though this was the case the defendant had no knowledge of the fact. It was not necessary that the defendant should personally have " such knowledge. The repair of the press was not a mere detail of the work, as in Webber v. Piper (109 N. Y. 496), but a part of the master’s duty to use reasonable care to provide safe appliances for his servants. . This duty was committed to the machinist, but being the master’s duty the machinist in the discharge of it was not a co-servant, but represented the master. For his neglect the master was liable. (Fuller v. Jewett, 80 N. Y. 45; Bushby v. N. Y., L. E. & W. R. R. Co., 107 id. 374.) The present case cannot be distinguished from those of Hayes v. Bush & Denslow Mfg. Co. (41 Hun, 407); Van Siekel v. Ilsley (75 id. 537).
The court, hearing a constant repetition of the tale in cases of accidents occurring in the use of these presses, that the press clicked ” and then the punch came down without action by the operator, may be suspicious of the truth of some of these narratives. The question, however, is one of fact for the jury, and the court is not justified in interfering unless the verdict is manifestly against the evidence. Of course, the court would allow no verdict to stand that was based on the negation of a well-known and accepted scientific fact of common knowledge, or on the existence of a physical impossibility. But the operation of these presses is not-a matter of common knowledge, and if the movement of the plunger without pressure on the treadle is an impossibility it was incumbent upon the defendant to establish it. The defendant did not satisfy the jury of the fact, nor had he satisfied us. '
The judgment and order, appealed from should be affirmed, with costs.
All concurred, except Hatch and Pbatt, JJ., dissenting.
Dissenting Opinion
(dissenting):
The theory upon which the action was brought is that defendant was guilty of negligence in placing plaintiff at work upon a defective,
Plaintiff, when he entered defendant’s employ, was required to .oil. a press for the. purpose of testing his familiarity with it. This he. satisfactorily performed, and was then set at work upon one. Upon, ■this press and another he worked six or'eight days, when he was. placed at. work on the press where he received the injury. The motive power of all the presses was steam, and they were'all aper-, ated by means of a treadle pressed downward with the foot. The. press upon which the injury occurred, is known as a Ho, 18: Bliss Adjustable Power Press, and was used in defendant’s factory for making tin safety caps for oil cans. The machine worked with a punch or plunger. There was a large fly or driving wheel .on the right of the machine connected with a shaft by a belt, Inside, the hub of this wheel there passed an axle and .the driving wheel revolved around without moving.it. The treadle was connected with.a small latch, and, when pressure was put upon it, the latch
Plaintiff testifies that he was set at work on the machine on Thursday ; that he noticed a clicking sound continually during that day. On Friday the machine clicked and the plunger came down two or
Upon this testimony the claim of the plaintiff is that the plaintiff had the- assurance of Kelting that the machine-was all right,, and had the right to rely thereon; - that he could go on in safety; that he had no knowledge that the clicking was indicative of danger, and. that he had been instructed when putting on the caps.to place his hand between the die and the punch. I do not think this claim can be sustained. • As
Flor do I think that the assurance by Kelting changes this rule. He had fixed the machine on Friday, but the clicking continued and
Judgment and order affirmed, with costs.