189 N.Y. 490 | NY | 1907
This action is brought under the Employers' Liability Act (Laws 1902, Chap. 600), servant against master, to recover damages for personal injuries. The defendant was engaged in the manufacture of soda ash and similar products. The plaintiff had been in defendant's *493 employ for a number of years, and for the last portion of the time his duty was to oil the machinery. At the time of the accident a belt in defendant's factory, running from the main shaft to a counter shaft, had become so loose as to wind around the pulley on the shaft. The belt seems to have been stronger than the attachment of the pulley to the shaft, and after it had been drawn as taut as possible from the counter shaft the pulley commenced to revolve on the shaft. To remedy this condition of the machinery it was necessary to loosen the belt. One Mullin was the foreman of the shift or gang to which the plaintiff belonged. Mullin had power to stop the machinery in case of accident or emergency. On being informed of the accident he had the movement of the engine slowed to a certain extent, but did not have it stopped, and then directed the plaintiff, with other workmen, to cut the lacing of the belt, he personally joining in the work. After the belt was cut he directed one of the workmen to throw the loose end on the floor. The shaft pulley being relieved from the strain of the taut belt, again revolved with the shaft and commenced to wind up the belt, the loose end of which struck the plaintiff. He was drawn over the shaft and received injuries which resulted in the loss of his leg. Two questions were submitted to the jury: First, whether Mullin was a person whose sole or principal duty was that of superintendence; second, whether it was negligent not to stop the machinery when the plaintiff was put at work to repair the injury to the belt and pulley. The jury found a verdict for the plaintiff. A motion for a new trial was made and denied. From the order denying that motion and the judgment entered on the verdict an appeal was taken, and both were reversed by the Appellate Division by a divided court and a new trial granted.
The order of reversal states that it was made solely on questions of law, the facts having been examined and no error found therein, and, hence, an appeal from the order lies to this court. The ground on which the Appellate Division placed its decision was that the negligence of Mullin in failing *494
to stop the engine, if negligence it was, was the negligence of a fellow-servant in a detail of the work for which, under the decisions in Crispin v. Babbitt (
It is contended by the counsel for the respondent that the failure to stop the engine was not a negligent act and that the accident which occurred was one which could not have been anticipated or foreseen. It requires nothing more than a perusal of the numerous accident cases found in the reports of this court to show that working on moving machinery involves great danger of personal injury. While it is true that the particular manner in which this accident occurred is quite exceptional, it is equally true that the jury was authorized to find that the work was inherently dangerous and involved liability to accident of some kind. There was evidence tending to show that stopping the machinery at the particular time would involve injury to the plant and product. This might justify a failure to stop the engine, but the evidence on the subject simply presented a question of fact for determination by the jury. The objection that the plaintiff assumed the risk is answered by the provision of the statute, which enacts: "The question whether the employee understood and assumed the risk of such injury, or was guilty of contributory negligence, *496 by his continuance in the same place and course of employment with knowledge of the risk of injury shall be one of fact, subject to the usual powers of the court in a proper case to set aside a verdict contrary to the evidence." The Appellate Division might have reversed the judgment on the ground of assumed risk, but in affirming the facts it has refused to exercise that power.
The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs in both courts.
GRAY, O'BRIEN, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Ordered accordingly. *497