11 N.Y.S. 344 | N.Y. Sup. Ct. | 1890
The verdict was recovered for the damages the plaintiff sustained from an injury to and substantial loss of one of his eyes, by an accident which occurred while he was in the employment of the defendant. He did machinist’s work on the running gear of the company’s cars. A few days before the accident, the company purchased a force-pump to be used in applying whitewash to its premises. It had been used for that object when it became clogged or obstructed, and the plaintiff was sent for to remove a cap over the apparatus, to permit it to be again placed in working order, and as he was engaged in doing that, and when he had loosened one of the screws holding the cap in its place, the whitewash was blown into his face and eyes by the compressed air, causing the injury which has been made the subject of complaint. The evidence sufficiently tended to prove that the service was being performed under the directions of the defendant’s superintendent, to make that a proper question of fact for the jury; and, as he seems to have had the entire control and management under the directors of the practical part of the company’s business, the action might very well be maintained for the want of care, or negligence on his part, producing the accident. The important inquiry, therefore, must be whether there was any want of reasonable care attributable to him, in the directions given to the plaintiff to render this service. The pump was manufactured by a company engaged in that business, and was subjected to the ordinary test to discover whether it was in any respect defective, and it was selected after that, for the defendant, by a person who had an acquaintance derived from experience in the use of the same apparatus. There was evidence in the case on the part of the plaintiff that the work on the interior of the pump had not been smoothly finished; but that could only be discovered by taking the pump apart, and that was not done until after the accident, and, as the accident itself was not shown to have been caused in any degree by that defect, it can form no circumstance ■of importance in the decision of these appeals. The proof tended to show that the pump had become obstructed and clogged, by so much wet lime passing into it, as to prevent the solution from passing through it, and it was necessary to remove the cap to relieve it by the removal of the compound. This, according to the uncontradicted testimony of one of the witnesses, had been done by himself on other occasions, with other pumps, without the least danger from any explosion of the lime; and there was nothing whatever at this time indicating that would be attended with any danger in this instance. Apparently the apparatus was in good condition, and it was in all respects as observable by the plaintiff, when he was directed to perform this service, as it was by the superintendent or any other person who was present at the time. The plaintiff himself testified on his cross-examination that “there was nothing about the machine that appeared to me that I could detect that looked dangerous, or as if the act which I was about to perform would result in danger, or injury to me,—nothing at all. I didn’t know what the machine was. I didn’t know there was anything the matter with the machine. It was a new patent machine they were experimenting on. I did not look at the machine. I was not there long enough to see whether thi-re was any danger or not. I did not inquire as to what the condition of the machine was. I made no inquiry at all.” As he observed it there was nothing to admonish caution or to suggest inquiry or investigation; and the other persons prescrit appear to have been as free from every suspicion of danger as himself. The witness Guenther had experience in the use of the machine for disinfecting purposes, as he stated, in 20 or 30 stables. He was asked, “What •vas the matter witli this one?” and said, “Two chances to one the lever got
