80 A.D. 384 | N.Y. App. Div. | 1903
The defendant moved at the close of the plaintiff’s case for a dismissal of the complaint. The disposition of this motion was held until the close of the whole case, when the court reserved its decision upon the motion subject to the verdict of the jury. The ■defendant objected and excepted to the submission to the jury. A general verdict for the plaintiff was reported, and after this report the defendant again moved to dismiss the complaint. The court then, after stating its reasons, verbally directed that the verdict be ■set aside and that the complaint be dismissed; exceptions to be heard in the first instance by the Appellate Division. Subsequently an order was entered pursuant to such decision, which recites that it was made on motion of defendant’s attorneys and directs that the complaint be dismissed upon the merits and that the verdict be set aside.
In December, 1900, the defendant owned and operated a factory for the manufacture of paper, in which it maintained two adjoining rooms, known as the wash room and kettle room, the former directly west of the latter; the door connecting them was some ten feet wide, and flush with the southerly jamb of the door, extending into the kettle room, was a wooden box bpilt from the floor to the ceiling, twenty-two inches square, which served as a guard or encasement of a steel shaft, performing over two hundred revolutions per minute. Out of the northerly face of this wooden casing was torn part of the material of which it was made, leaving a hole into the interior five or six inches wide, extending from the floor upward for six or eight feet; the shaft revolved about six inches back of the northerly face of the casing, and this had been the condition for five or six months.
The plaintiff’s intestate had been employed for two or three months in the wash room, attending one of the machines operated there. It did not appear that he was skilled in the use of machín
The question of contributory negligence on the part of the deceased, however, is raised in this case. The respondent contends that if, in the absence of direct proof, the circumstances from which freedom from contributory negligence is sought to be shown make an inference of the existence of such contributory negligence as reasonable as an inference of the lack of such negligence, or point in neither direc
The plaintiff’s exceptions should be sustained and judgment directed upon the verdict, with costs, and inasmuch as no judgment has yet been entered, the question of additional allowance should be at plaintiff’s election determined at Special Term.
Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred.
Plaintiff’s exceptions sustained and judgment directed upon the verdict, with costs.