129 N.Y.S. 572 | N.Y. App. Div. | 1911
This.is a common-law action for the recovery of damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant, and the jury has found a substantial verdict in favor of the plaintiff, which he now seeks to sustain. The plaintiff had been in the employ of the defendant as a pressfeeder in a printing establishment for about eighteen months, the most of the time in the daytime. ■ He had, at his own request, been transferred to the night gang for the purpose of earning larger compensation. The room where he was at work was about two hundred feet long and fifty feet wide, and was occupied by seventeen large presses, sixteen of which were placed along the side of the building, with the back of the presses, where the printed sheets were delivered, toward the wall on the Brooklyn Bridge side, and about four feet from the wall. These presses were what are known as Optimus presses, a standard make, and there is no suggestion that they were out of order or defective in any respect. On the night of November 23-24, 1903, just after midnight, the plaintiff was instructed by the night foreman to clean up press No. 7, on which he had been working. This required the use of a brush, and not having one at hand plaintiff went to the feeder of press No. 8 and was told by the latter that he would find a brush on a shelf fastened against the wall in the rear of press No. 8, which was at the time in operation. The plaintiff started to walk to the rear of press No. 8, and while so doing his foot slipped sidewise, and in falling he threw out both his hands, his right hand passing through an opening in the heavy iron casting, constituting the frame of the press,
We are of the opinion that, as a matter of law, the Labor Law does not help the plaintiff in' this case> and that it was error for the learned trial .court to refuse to charge “that if a machine is so constructed that there is no danger to the person of an employee working on or around that machine, that it is properly guarded.” In Valentino v. Garvin Machine Co. (139 App. Div. 139, 144) this court say: “It would follow that the judgment of nonsuit in this case must be reversed, if it were not for the fact that the evidence establishes no actionable negligence, which is- the proximate cause of plaintiff’s injury. A master is not bound under all circumstances to guard all' of ' the machines in his factory. Some force must be given to the word cproperly,’ and the'necessity of guarding must to somé extent be determined, by the probable dangers from exposure. (Glens Falls P. C. Co. v. Travelers’ Ins. Co., 162 N. Y. 399; Dillon v. National Coal Tar Co., 181 id. 215.) It is difficult to understand in this case, considering the position in which the cogs were placed, how plaintiff could get. his hand into-them in the ordinary conduct of defendant’s business. He does not claim that he did.' He says that he slipped, and in that way thrust his hand into the machine. The slipping was the primary cause, therefore. But there is 'no evidence as to the cause of his slipping, or that the same was due to any fault. or negligence of defendant.” In King v. Reid (124 App. Div. 121, 124) the court, after quoting the opinion of the court in Glens Falls P. C. Co. v. Travelers’ Ins. Co. (supra), in discussing printing presses, say: “All machinery of this kind is liable to cause injury when unexpected and not to be anticipated events occur; but I think á machinéis properly guarded when those employed are protected, when using the ordinary \ methods of operating it.” The evidence in this case, furnished by the plaintiff, is positive that, the machine in question was so constructed that no injury could come to the employee while V engaged in the ordinary operation of the machine, and that it
There was no evidence in this case from which it could be determined that the plaintiff slipped and fell through any negligence chargeable to the defendant. There is a great deal of testimony to the effect that thé floor of this printing shop in the rear of all of the presses was more or less greasy; that the oil used in lubricating the machinery flew out upon the floor and became mixed with ink, benzine and other materials, forming a coating, and that this general condition had existed throughout the eighteen months that the plaintiff had worked there, the plaintiff testifying that he was familiar with this general condition, but the plaintiff himself, while testifying that he slipped, does not pretend to say that this was due to the presence of this grease and dirt. He says: “I slipped, and I reached over and fell down on my arm — I slipped on the floor. * * * When I fell, I could not see just where I was stepping. It was too dark. I did not find out, after I fell, what it was I slipped on. * * * I do not know what the condition of the floor was at the back of 8 press, where I slipped' and fell, just immediately before I fell. I do not know whether or not there was anything on "the floor at that time. * * * I fell forward — sort of sideways. It was sideways, towards the right. * * * I fell sideways. My foot slipped out from me sideways. I was walking straight ahead, slowly, not very slow; just enough to take one or two steps off the press. I didn’t jump down and my foot slip out from under me as I jumped down; I am sure of that, absolutely. I stepped down, so I got down safely; so I was firmly on the floor of the shop. Then I turned and took a couple of steps towards the press. Then I took one or two steps behind the press, walking towards the bench. * * * I had taken one or two steps towards that press, towards Ho. 9, and my foot slipped and I fell towards my right side; I don’t know whether my hand or arm came down on the frame at the left of the bench; I slipped and grabbed with both hands while
The above is all the evidence as to the plaintiff’s slipping. Not a word of the evidence tends - to show that the plaintiff slipped because of-oil upon the, floor. Indeed, the physical facts to which he testifies indicate rather that he stepped upon some rolling object, for his foot went out sideways when he was moving forward. At least there is no suggestion in the plaintiff’s testimony that he slipped upon the oily surface because of its alleged slippery condition. The evidence was that the floors were slippery in places,because of this oil, but there was no evidence from which it is any wise certain that there was any such" condition at .the exact point where the -plaintiff fell, nor is there anything in the plaintiff’s evidence from which it can be said that he fell because of a slippery cpndition of the floor; it is just as probable that he slipped" upon something which may . have dropped upon the floor a moment before, and for which the defendant could not be held responsible.
But, assuming that the plaintiff slipped upon the oily floor. He knew of the condition; he was familiar with that press-room, where he had worked on various presses during his' eighteen months of employment, arid he must be deemed to have assumed the risks of the employment. Upon this phase of the case it would be .hard to distinguish the facts here pre- 1 sented from those involved in Welch v. Waterbury & Co. (136 App. Div. 315, 321), where we held that where a servant, enters upon an employment from its nature necessarily hazard-" ous, he assumes the usual risks and perils of the service, and also risks which are apparent to ordinary observation.' In the • present case there is no question that, the plaintiff knew as well
The judgment appealed from should be reversed.
■ Jenks, P. J., Hirschberg, Burr and Rich, JJ:, concurred.
Judgment and order reversed and new trial granted, costs to abide the event.