27 N.Y.S. 331 | New York Court of Common Pleas | 1894
On Saturday, July 7,1889, Louis Maisky, the father of the plaintiff, applied at the place of business of the defendant corporation for employment for his minor son. He asked for light work for him, and was told to bring his son the following Monday, and he would obtain employment. There was no restriction as to the Mnd of work which he was to do, other than that it should be light. According to the father’s testimony, the plaintiff was not with him when this arrangement was made, but waited for him outside. On Monday the father took his son to the defendant’s place of business, but did not go in. He was then set at work tying strings in calendars, which he continued to do until the following Thursday. Besides tying strings in calendars,- he did nothing except sweeping up in the mornings. There was, on the same floor where plaintiff had been at work, an apparatus used for cutting cardboard, and at that time used for trimming the edges of the
“I was sitting on a bench. I was to throw the clippings into a box on the right side of me. Here was the table, and I was sitting like this, (indicating,)1 a little sideways. I had to take them this way, (indicating.) I could only take them away with my thumb; that is, I would rest my thumb on the edge of the table, and move them towards me; pass them to my right hand. The foreman came over to me, and asked me how I would like this. I told him I was afraid of it, and he told me I had to work at it until he gets another boy; and within that time my finger was cut off, just while I was talking to him. He (the foreman) came over to me, and said to me how do I like-that work. I told him I didn’t want to work at it, because there were too-many boys went away from it; and he said I would have to. stay until he gets another boy. Within that time I lost my finger.”
This is absolutely all the evidence as to how the accident happened, and at the close of plaintiff’s case the court, on defendant’s-motion, dismissed the complaint, and we think properly.
We do not think there was any evidence of negligence on the part of the defendant to be submitted to the jury. There is no proof that the cutting apparatus was a dangerous machine. The only thing like machinery about it was the counterpoise,—a simple weight which drew up the knife after each cut, and held it there-until the operator wished to make another cut. There were no-pulleys, bands, or gearing attached to it, to get out of order. It was operated, not by a steam or electric power, but by hand. Its method of operation was simple and obvious. The knife went down-slowly, and in full view of the plaintiff. In fact, the apparatus was little more of a machine than a carving knife or a handsaw, and was-just as much under the control of the operator as either of them, and about as dangerous to others as these instruments. There is-no proof that the foreman, Weber, or the cutter, Seagrist, were not fully competent to perform their respective duties, or that the apparatus was out of order, or worked irregularly or unexpectedly. Respondent was not an insurer of its employes, and was not required, to guard against unforeseen accidents. It was not necessary that defendant or its servants should warn plaintiff that the knife would cut if he put his finger under it, for that was as apparent to him as-to them, and in fact he says he knew this. Whatever there was of danger or risk he, a bright boy of nearly 14 years, could see and appreciate as well as an adult, (Tucker v. Railroad Co., 124 N. Y. 317,
It is manifest, however, that the accident occurred, not by reason of any defect in the machinery, or of Seagrist’s carelessness, but because the foreman, Weber, by speaking to plaintiff, distracted his attention from his work. But we do not think this fact renders the defendant liable. The foreman was not the alter ego of the master,' and did not stand in its place for any such purpose. It is clear the inquiry was personal to the foreman, and made because he was interested in the lad. He was acting within his own directions. The risk of such distraction, if any, was one the plaintiff assumed when he entered upon the employment. Loughlin v. State, 105 N. Y. 159, 11 N. E. 371; Butterworth v. Clarkson, (Super. N. Y.) 22 N. Y. Supp. 714; Crispin v. Babbitt, 81 N. Y. 516. But, even if the foreman had been the master for such purpose, the plaintiff absolutely failed to show how 'the accident happened by reason of the foreman’s speaking. It is not claimed that he spoke suddenly, or in a loud or threatening manner, so as to startle him; on the other hand, the inquiry itself was a friendly one. Besides, it was his own act in keeping at work while talking, and not stopping, as he should have done. If a master is to be held liable merely because its superintendent or other representative speaks to an employe, no direction, however urgent, could be given to a servant, without first asking him to stop work; but even asking him to do this might distract his attention, and thus make the master liable.
Appellant contends that the refusal of the foreman to permit the plaintiff to stop work at once upon his saying he “was afraid, and didn’t like to work on it,” rendered the defendant liable, and that he was acting out of a constrained acquiescence in the master’s requirements. As before stated, we do not think the foreman was acting for the master in making the inquiry and refusing the request, but within his own discretion. But, if he were acting for the master, it is impossible for us to understand how this refusal caused the injury, as the refusal and the accident were, according to plaintiff’s testimony, coincident. Suppose the foreman had said, “Well, my lad, if you do not like the work, you may stop at once, and go back to stringing calendars,” instead of what he did say; is there the least probability that the accident would not have happened? The one expression would have taken as long a time to utter as the other, and, while in the act of refusing, the accident happened. It would appear, therefore, that neither the refusal nor the supposed restraint had anything to do with it. The foreman himself would
The complaint in this action sets out the recovery of judgment in an action by plaintiff’s father for loss of service by reason of the accident here complained of, which was not denied "by the answer. Upon the trial he offered the judgment roll in the father’s action “as an estoppel by record.” The court excluded it, and the plaintiff excepted. He then offered the roll “as some evidence of the fact that the injury was caused solely by reason of the negligence of the defendant.” The court again excluded it, and the plaintiff excepted. We think both rulings were correct. The judgment in favor of the father could not be “some evidence of negligence” unless it were conclusive evidence. If it were conclusive evidence, it operated by way of estoppel, and estoppel, to be effectual, must be mutual. Booth v. Powers, 56 N. Y. 33; Collins v. Hydorn, 135 N. Y. 320, 323, 325, 32 N. E. 69. The case last cited holds that a judgment against a party in his representative capacity as an assignee for the benefit of creditors does not include him in an action brought in his individual capacity, although the same questions are involved in both actions; and in Rathbone v. Hooney, 58 N. Y. 467, it was held that a judgment against a party sued as an individual is not an estoppel in a subsequent action for the same cause, in