42 N.Y.S. 182 | N.Y. App. Div. | 1896
The defendant, at the times hereinafter named, was a domestic corporation engaged in the manufacture of currycombs, with its place of business at the city of Syracuse, in this state. The plaintiff, who brings this action to recover damages for a personal injury received by him while in the employ of the defendant, was a lad a little more than 16 years of age at the time of receiving such injury. On the 16th day of June, 1895, he applied to the defendant for employment, and his application was "accepted, and at 1 o’clock" in the afternoon of the same day he was set at work at a machine which was designed to press the backs of the currycombs into proper shape. He received instructions how to operate the machine, and continued to operate the same until about 5 o’clock, when, having finished all the plates furnished him, he was taken by the foreman to another machine, known as “Ho. 19,” which was somewhat similar to, but larger than, the one which he first operated. This machine was designated as a “punch,” and was one of several of like character, which were located in a row in the defendant’s shop, and elevated upon a platform about one inch above the floor. The punch was operated by a lever which, when pressed by the foot, set a fly wheel in motion, and caused a die to descend upon a plate with sufficient force to bend it into the shape required. When the plaintiff was placed in charge of this machine he was warned by the foreman never to press his foot upon the lever except when he wished the die to descend, and he also received further instructions with regard to its operation. A round wooden stool without any back was furnished the plaintiff upon which to sit while operating the machine. This stool stood upon the floor a little distance from the platform, but, after operating the machine for a short time, the plaintiff became tired of reaching forward for the purpose of placing and removing the plates, and he thereupon drew his stool closer to the punch, so that its front legs rested upon the platform and its
The case was tried upon the theory that there was an omission of duty upon the part of the defendant, which it owed to the plaintiff, in tvyo particulars: First, in neglecting to instruct the plaintiff as to the dangers which might be apprehended by reason of the character of the floor or of the stool furnished him upon which to sit while operating the machine; and, second, in failing to furnish the plaintiff a proper instrument with which to remove the plates from the form. And these two propositions were distinctly submitted to the jury by the learned trial justice, with instructions which authorized them to render a verdict in favor of the plaintiff in the event that they were satisfied that the evidence in the case clearly established the same or either of them. The plaintiff, at the time of receiving the injury complained of, was upwards of 16 years of age. He was, therefore, sui juris, and, in the absence of evidence tending to show that he was not qualified to understand and appreciate the situation in which he was placed, and the possible danger arising therefrom, he was chargeable with the same degree of care, and with the same knowledge of his environment, as an adult would have been in the same circumstances. Tucker v. Railroad Co., 124 N. Y. 308, 26 N. E. 916. And to this must be added the correlative assertion that when the plaintiff entered into the defendant’s service he assumed all the risks and perils incident to the use of the machinery and appliances furnished him which were apparent to a person of ordinary observation. Shaw v. Sheldon, 103 N. Y. 667, 9 N. E. 183; Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286.
With this much determined as the law of the case, it seems to us
HARDIN, P. J., and FOLLETT and GREEN, JJ., concur. WARD, J., concurs in result. For concurring opinion, see 42 N. Y. Supp. 1105.