135 N.Y.S. 291 | N.Y. Sup. Ct. | 1912
This is an action uunder the employer’s liability provisions of the Labor Law (§§ 200-202, as amd. by Laws of 1910, chap. 352, and § 202-a added by the same act, which took effect Sept. 1,1910).
The accident took place on February 14, 1911.
The plaintiff at the time of the accident was a pipe-fitter in the employ .of the. defendant. He was injured while attempting to detach a “ T ” fitting from two pieces of pipe,
Plaintiff complained to the storekeeper about the condition of the tongs, but the latter said they were the only pair he had, and if the plaintiff could not use them he must give up the job. Plaintiff, therefore, took the tongs, fastened them on the pipe in the machine and turned on the power; but the machine did not start, because, as plaintiff claims, of the slackness of the belt. To increase the friction plaintiff placed his right hand on the belt; the machine started and immediately the chain on the chain tongs broke. Thus relieved of all resistance the machine began to revolve rapidly and plaintiff’s right hand slipped behind the belt and was caught.
The foregoing is an outline of the facts as narrated by plaintiff and his witnesses. There was conflicting testimony as to the several points, but no such preponderance- of evidence in favor of the defendant on any such issue as would warrant the court in setting aside the verdict as contrary to the weight of evidence.
The determination of this motion involves the considera-' tion of four questions, as follows: (1) Was the defendant guilty of negligence in furnishing defective machinery or appliances, resulting in injury to the plaintiff ? (2) .If so, did plaintiff assume the risk of injury from the defective condition of such machinery or appliances ? (3) Was plain
1. Two charges of negligence are made against the defendant: (a) the defective condition of the chain tongs, about which there seems to be no question; (b) the slackness of the belt on the pipe machine. The latter may be, however, disregarded, except so far as it furnished an explanation of the reason for plaintiff’s placing his hand against the belt. With respect to the first charge, the question is: Was the defendant negligent in failing to supply plaintiff with a proper pair of chain tongs, or in supplying him with an unfit pair ?
This involves first the consideration of the question whether it was proper to use the pipe machine to remove fittings. Defendant claims that it was not, and produced some testimony to that effect. There was evidence, however, brought out on cross-examination of the plaintiff, to warrant the jury in inferring that Mr. Eeddert, the assistant master mechanic, had seen the plaintiff using the pipe machine for that purpose. It was also shown that it was customary in defendant’s factory to use the pipe machines for that purpose— to such an extent, apparently, that the jury might . have inferred that Mr. Eeddert ought to have known of it, if he did not. And there were no instructions, general or special, that these machines should not be so used. Moreover, there was evidence from which the jury might have found that Mr. Eeddert directed plaintiff to use the pipe machine to take off the “ T ” fitting. ■ This was disputed by Mr. Eeddert, but the determination of this issue was for the jury. On all the evidence, I think the finding, which, it must he assumed, the jury made that plaintiff was justified in using the pipe machine to remove the fitting, must be sustained. Krause v. Gair Co., 136 App. Div. 357.
• Section 200 of the Labor Law (as amended by the act of 1910) permits, recovery by an employee, who is himself in the exercise of proper care, against his employer, in cases where the former is injured, “ By reason of any defect in the condition of the ways, works, machinery, or plant, connected with or used in the business of the employer which
The amendment of 1910 added the word “ plant ” to the provision above quoted, which had theretofore related only to ways, works and machinery. Under the former statute it seems to have been held that subdivision 1 of section 200 did not enlarge the master’s duty, but was simply declaratory of the common law. Nappa v. Erie R. R. Co., 196 N. Y. 176, 181. The addition of the word “ plant” has, however, largely extended the scope and application of the statute. -In Yarmouth v. France, L. R. (19 Q. B. Div.) 647, it was held that the word “ plant,” as used in the English “ Employers’ Liability Act,” included a horse, and that the vicious nature of the horse constituted a defect in the plant of the defendant, who was a wharfinger and warehouseman. Lindley, L. J., said that the word, in its ordinary sense, “ includes whatever apparatus is used by a business man for carrying on hi-s business — not his stock-in-trade which he buys or makes for sale; but all goods and chattels, fixed or movable,- live or dead, which he keeps for permanent employment in his business.” P. 658. .The generally accepted legal significance of the word seems to accord with this definition. 30 Cyc. 1637, and notes.
There can, therefore, be no question but that the chain tongs constituted a part of defendant’s plant, which it was defendant’s duty under the statute to keep in proper condition. The change in the law by the introduction into the statute of'the-word “plant” renders inapplicable to this case and others arising since the Act of 1910 several authorities relied on by defendant to the effect that where the instrument or appliance is a simple instrument or appliance like a ladder, or a pair of gloves, concerning the condition of which the employee is as able to judge as the master, the master is not responsible for injuries resulting from the defective condition thereof. Harsh v. Chickering, 101 N. Y.
Furthermore, I cannot agree with the defendant’s contention that the chain tongs, especially when used in connection with the pipe machine, constituted a simple instrument or appliance within the doctrine of the authorities last cited.
The next question is'whether the defect in question had not been discovered or remedied owing to the negligence of defendant or of any person in the service of defendant and intrusted by it with the duty of seeing that the ways, works, machinery, or plant, were in proper condition. It is not clear from the testimony who was intrusted with this duty, so far as the chain tongs were concerned, or whether there was any one in defendant’s employ charged therewith. Williams, the store-room keeper, testified that he had no instructions to' see that the tools in his store-room were in proper condition; that if he wanted anything repaired he would report it to the master mechanic or his assistant on his own responsibility, although he had no instructions to do so. As his testimony on this subject is not wholly clear, it may be said that, if he was charged with the duty of seeing that the . tools in his store-room were in proper condition, he was then a person in defendant’s service intrusted by defendant “ with the duty of seeing that the ways, works, machinery, or plant, were in proper condition.” The case of Healy v. Buffalo, Rochester & Pittsburg R. Co., 111 App. Div. 618, is not applicable, because the action was, so far as appears, a common law action. As it was the engineer of a locomotive who failed to report the defective condition of the water-glass in his engine, by the explosion of which plaintiff, the
If on the other hand Williams was not charged with any duty with respect to seeing that the 'tools in his store room were in proper condition, there was either some one else intrusted with' that duty who, the jury might have found on the evidence, failed to perform it so far as the chain tongs in question were concerned, and whose negligence was imputable to the defendant, or else no person was charged with, that duty, in which case the jury would -have been justified in finding the defendant itself negligent.
It is claimed by defendant in its brief on this motion that it cannot be charged with negligence because there is no proof as to how long the chain tongs had been in defective condition. The testimony shows that the defective condition was not of sudden development, but the result of continued use, and hence a finding by the jury that a proper inspection would have disclosed it to the defendant, or its responsible officers, would be warranted. Also, as indicated below, there was some evidence to show knowledge of the defective condition on the part of the master mechanic.
I am not at all sure that the defendant would • not be chargeable with negligence even at common law, but as the action was brought under the statute it is unnecessary to consider that question.
On the whole case, therefore, I think it was a fair question for the jury whether or not the defendant was chargeable with negligence (Greener v. Gen. Electric Co., 147 App. Div. 462), and that the verdict was not contrary to the weight of evidence.
2. The next question is as to the assumption of risk. There is no doubt but that, at common law, plaintiff merely
The amendment of 1910 has altered section 202 so that it reads in part as follows: “ In an action brought to recover damages for personal injury or for death resulting therefrom received after this act takes effect, owing to any cause, including open and visible defects, for which the employer would be liable but for the hitherto available defense of assumption of risk by the employee, the fact that the employee continued in the service of the employer in the same place and course of employment after the discovery by such employee, or after he had been informed of the danger of personal injury therefrom shall not be, as matter of fact or as matter of law, an assumption of the risk of injury therefrom, but an employee, or his legal representative, shall not be entitled under this article to any right of compensation or remedy against the employer in any case where such employee knew of the defect or negligence which caused the injury and failed, within a reasonable time, to give, or cause to be given, information thereof to the employer, or to some person superior to himself in the service of the employer, or who had intrusted to him some superintendence, unless it shall appear on the trial that such defect or negligence was known to.such employer, or superior person, prior to such injuries to the employee; or unless such defect could have bden discovered by such employer by reasonable and proper care, tests or inspection.”
The obvious purpose of the legislature was to abrogate the
He further testified, in substance, that there had been a shortage of chain tongs, and that a requisition had been put in to Mr. Porter, the master mechanic, for repair of chain tongs and for new chain tongs, and that chains had come in and been returned because they were the wrong number, and that new chain tongs were received and sent back. There was no testimony in the case in any way contradicting this testimony. These considerations, in my opinion, dispose of the question of assumption of risk.
3. Coming to the question of contributory negligence, it is important first to observe that the burden of proof was on the defendant to show that the plaintiff was guilty of contributory negligence in order to defeat recovery" on that ground. Section 202-a of the Labor Law (added by the amendment of 1910) has changed the rule of burden of proof, 'in this state at least, so far'as cases coming within the employer’s liability provisions of the Labor Law are concerned. Upon the question of assumption of risk by plaintiff’s voluntary and unnecessary act the burden of proof is also on defendant. Dowd v. N. Y., O. & W. R. Co., 170 N. Y. 459; Jenks v. Thompson, 179 id. 20.
As I understand the law an employee assumes the risk of injury and is guilty of contributory negligence, when he voluntarily and unnecessarily places himse'lf in a position of danger, which his duty did not require him to assume. Thompson v. Cary Mfg. Co., 62 App. Div. 279; Parento v. Taylor, 26 id. 518. But under the employer’s liability provisions of the Labor Law, as now amended, where there is negligence imputable to the employer, the employee does not assume' the risk of injury by doing’acts which his duty,. under the conditions of his employment, requires him to do; • nor is he' guilty of contributory negligence in so doing, although his act may, by reason of the employer’s negligence, involve unusual dangers, of which the employee has knowledge •—■ provided, of course, that the accident resulting in injury to the employee would not have happened but for the employer’s negligence. At least an employee cannot under such circumstances be held as matter of law to have assumed the risk or to have been guilty of contributory negligence. McDermott v. Straus, 123 App. Div. 303; affd., 195 N. Y.
If this is a correct statement of the law, then it follows that plaintiff was not guilty of contributory negligence as matter of law in using the defective chain tongs, nor in pressing his hand upon the slack belt, knowing of the defective condition of the chain tongs, nor did he, as matter of law, assume the risk of injury by so doing; for only by so doing, so far as appears from the evidence, could he accomplish the work which he had been ordered by Mr. Eeddert to dp, and this method of increasing friction being a common practice. Newell v. Ryan, supra.
It is urged by defendant that there were other chain tongs about the factory, although not in the store-room, and that plaintiff was guilty of contributory negligence in not hunting up another and more suitable pair; but there was no evidence that the .other chain tongs, which were out, and presumably in use by other employees, could have been secured by plaintiff if he could have found where they were, nor that any of those other tongs were in any better condition than those used by plaintiff. Under the rule of burden of proof established by section 202-a of the Labor Law, I think the defendant should have produced evidence on these points in order to make out the defense of contributory negligence based upon the presence in the factory of other chain tongs.
I conclude, therefore, that the questions of assumption of risk by plaintiff’s voluntary act and contributory negligence were properly submitted to the jury; and in my opinion, on the whole case, the findings of the jury on these questions should not be disturbed.
4. Upon the question of damages, I am inclined to think that the award of $12,500 was somewhat excessive. The plaintiff’s right arm in its present condition is practically useless for any kind of work, but I am not convinced that proper massage treatment would not improve its condition.
The motion for á -new trial will, therefore, he granted, on condition that defendant pay the costs of this trial, unless plaintiff consents, to a reduction of the verdict to $10,000. If he so stipulates, the motion will'be denied.
Ordered accordingly.
