Lynch v. Shanley Co.

98 N.Y.S. 406 | N.Y. App. Div. | 1906

Miller, J.:

The plaintiff .was working on August 31, 1902, in'defendant’s laundry upon a machine called a mangle, which contained á revolving roller, oyer which the linen was fed into the machine for the purpose of being dried and ironed. She was waxing the. roller on the feeding side of the machine ivhile it was in motion and in. some manner her hand was drawn into the machine,. inflicting serious injury, for which she seeks to recover in this, action.

Three grounds of negligence were assigned : First, the omission tó provide proper machinery ; second, allowing the plaintiff, alleged to have been á minor, to clean the machine while" in motion, in violation of section 81 of the Labor Law (Laws of 1897, chap. 415, as amd.'by Laws of 1899, chap. 192); and third, the omission to discharge the duty of properly instructing the plaintiff. lío proof Was offered in support of the first two assignments of negligence, .'and although it is stated in respondent’s brief that the answer admits that the plaintiff was a minor, this allegation was denied on information and belief, and no proof was offered in. supp.ort of it. The only question respecting the defendant’s negligence, submitted to the jury by the learned trial justice, was whether it omitted to . discharge the duty of giving proper instructions, and the judgment must be sustained upon, this ground, if at all.,

The plaintiff -had been at work in the laundry for some time before the accident, and had. had opportunity to observe fully the operation, of this machine. She testified : “ I didn’t want to get my hand in in that place. I knew very well if I did' not watch out it might get caught. * * * I kñéw'my hand might get caught if I didn’t look out. I did not know how badly it would be hurt, but I knew it would hurt,it if it got caught in there, and that is what I was careful about all the time. * * * How, the linen, whenever it would be put here, would be caught by the revolving mangle, drawn down through the roller underneath and deliver it on the-receiving side, and I had seen that going on for several months, so that I knew that that machine would have the effect of drawing things in there unless I looked out for it.” It appears that the plaintiff was told by the foreman to observe the manner in which the other girls operated the machine, and that she cleaned it precisely, as-she had seen the others do; and her complaint is that she was in fact instructed to clean the machine on the involving side which subjected her to danger, instead of on the revolving side where she would have been safe. So far as the duty of instruction which the master owed her is concerned, it appears by her own evidence that she was fully apprised of all- that the master could have informed her, and this being so, the master owed her no duty in this regard. (Hickey v. Taaffe, 105 N. Y. 26; Stevens v. Gair, 109 App. Div. 621.) The defendant w.as not responsible for the negligence of the foreman, except such negligence occurred in the attempted discharge of, or the omission to discharge, some duty which the master owed, because this case is not brought under the Employers’ Liability Act, and as the master owed no duty of instruction, the negligent- direction of the foreman respecting the manner of doing the work, in case there was such negligence, concerned a detail of the work and not a duty, devolved upon the master. It is, therefore, unnecessary to consider whether section 3 _of the Employers’ Liability Act (Laws of 1902, chap. 600) is applicable to all actions for negligence between master and servant, and what effect, if any, it has upon the doctrine of assumption of risk.

The judgment and order should be reversed and' a new trial granted, costs to abide the event.

Hirschberg, P. J., Hooker,. Gaynor and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.