42 N.Y.S. 1105 | N.Y. App. Div. | 1896
The exceptions we are to consider upon this appeal were taken to the court’s refusal to nonsuit the plaintiff, and to the charge of the court. The court submitted to the jury the questions whether the defendant gave the plaintiff a proper place to work in, taking into account the stool and the floor, and whether it gave him proper instructions in reference to the way that the plaintiff should work there, and whether the defendant should not have furnished an iron of the kind described, or something to take its place, in placing the backs in, and removing them; and the appellant insists that, upon the evidence contained in the record before us, it was not proper to submit to the jury the question of the defendant’s negligence, and it appears from the evidence that the plaintiff was guilty of such contributory negligence that the trial court should have so held, as a matter of law. The question of contributory negligence was properly submitted to the jury, under the circumstances of this case. The serious point is whether the question of the defendant’s negligence should have been submitted to the jury. The plaintiff was a lad of 1(5 years, without any experience or knowledge of the use of these machines; and, while he was aware of the danger of putting his foot upon the lever when his hands were in the die, he met a difficulty in removing the plates that were too large for the form, or that stuck in it, which the jury might have found from the evidence was very difficult for an inexperienced person to obviate. There was evidence, also, upon which they could find that the only information given to
The defendant’s counsel, however, claims that the absence of this iron was not the proximate cause of the plaintiff’s injury. We think that the jury might have fairly inferred from the evidence that if the plaintiff had had an iron, with proper instructions as to its use, he would have used it in attempting to remove the “back” at the time he was injured. It would have been the natural thing for him tti have done. The plaintiff tried to use his pocket knife for that purpose, until he broke the blade, and he resorted to oiling the machine. The jury were permitted to take note of the whole situation that surrounded the plaintiff at the time of the accident. As before said, many of the backs that were furnished the plaintiff to place in the forms were too large, or not cut in proper shape, for that purpose; and the evidence does not explain why this Avas so, and why the defendant did not, in the present advanced state of machinery, furnish to the plaintiff “backs” of the proper size to use. If it had, the accident might not have occurred.
The difficulty of the defendant’s contention lies in the fact, as the jury may have found, that the inexperienced plaintiff was put to work upon a machine that he did not understand, without complete instructions, and without being furnished with means of removing the backs that stuck and were too large, upon a stool, on a slippery floor, where the defendant ought to have anticipated that injury might come to the plaintiff in attempting to do the work required of him.
The defendant cites Crown v. Orr, 140 N. Y. 450, 35 N. E. 648; Ogley v. Miles, 139 N. Y. 458, 34 N. E. 1059; and Buckley v. Manufacturing Co., 113 N. Y. 540, 21 N. E. 717,—as sustaining its position. An examination of these cases shows such a different state of facts in each case from the one before us that they are not controlling here. But as bearing upon this case, and as strongly sustaining the views here expressed, reference may be had to Skaarup v. Stover, 56 Hun, 86, 9 N. Y. Supp. 92; Heavey v. Paper Co., 57 Hun, 339, 10 N. Y. Supp. 385; Brennan v. Gordon, 118 N. Y. 489, 23 N. E. 810; McCarragher v. Rogers, 120 N. Y. 526-534, 24 N. E. 812; Finnerty v. Prentice, 19 Alb. Law J. 160, affirmed 75 N. Y. 615; Owens v. Ernst, 1 Misc. Rep.
But the appellant earnestly insists that it was error for the trial court to submit to the jury the question, as a distinct proposition, whether there was an omission of duty on the part of the defendant to instruct the plaintiff as to the dangers that might be apprehended by reason of the character of the floor or of the stool furnished the plaintiff upon which he was to sit while operating the machine; the contention being that the condition of the floor and the stool, and its relations to the machine, were apparent to the plaintiff, and about which he needed no instructions, and he took the risk of the situation in that regard. If the charge of the trial court, taking it altogether, is to be construed as distinctly charging that this ground of negligence is sufficient to go to the jury, irrespective of the failure to furnish the means of extricating the forms from the die, and of general instruction as to the entire method of the work, of which there is some doubt, it was probably error to so charge; and upon that ground alone I concur with the majority of the court in granting a new trial.