126 N.Y.S. 720 | N.Y. App. Div. | 1910
A more or less eminent English jurist is quoted as holding the’ doctrine that a plaintiff presumptively has a cause of action and is entitled to recover, and this doctrine, in actions for negligence, has more or less distinguished executive sanction, but the courts of this State are, as yet, limited by positive rules of law, and the plaintiff cannot recover ■ upon the case which is presented by tliis record. The case has been tried twice, each time resulting in a verdict for the plaintiff, and if only the question of the weight of evidence were involved, we might feel it our duty to acquiesce, in the'result, but in the view we take of this controversy the plaintiff should have been nonsuited, or a verdict should have been directed on the ground that the plaintiff assumed the risks of the employment. The plaintiff had-been in the employ of the defendant in operating a putty-.mixing machine from the 11th day of September, 1906, to the 23d day of January, 1907, on which day he lost three of his fingers while taking putty from a side door in the mixing'pan while the
But beyond this, there "is no evidence in the case that this was the proximate cause of the injury, if we may except the inference' drawn by the plaintiff himself but which does not appear to be justified by the facts known to him. The putty-mixing machine consists of a large pan, with flaring sides like a dishpan. Through, the center of this pan was a vertical shaft, and to this shaft was geared a large stone roller which appears to have followed a course around the center of this pan. In front of this heavy roller was a knife or scraper, which was adjusted to run at an angle which'would throw the ingredients of the putty toward the center, thus facilitating the mixing under the revolving roller. This knife or scraper ran close to the sides of the pan,, and at one side of this pan was a door-which was opened when the putty was mixed, and through this door the putty was permitted to run out and was .placed in can's by the mixer. The plaintiff' had mixed a batch of materials and was engaged in running off the putty. This was done by permitting the machine to move in the ordinary way until a portion of the putty had been thrown out, then the lever was" moved and the knife or scraper was reversed so that the dull end of the same followed the inside of the pan and pushed the putty toward the outside of the same, and as it passed the door it was crowded out. The. plaintiff claims to have made the reverse, and then to.have put his hands inside of this door to drag out some of the putty which did not come out freely,'and that while so engaged the lever slipped from its place and the knife reversed, catching his hand between the side of the door and the knife, cutting off. three of his fingers. There is not a particle of evidence, so far as we discover, which tends to show that there would not have been practically the same result if the plaintiff had placed his hand where it would have been caught between the blunt end of the scraper and the' door, and it is not even conclusively shown that this is not what actually' did occur. The plaintiff testified that he reversed the lever; that he
In this connection the learned court was asked to charge the jury that,, if they “ find that the plaintiff in putting his hand through the door of the pan at the time he received his injury knowingly violated a rule of the defendant, he- cannot recover,” and this request was refused, the court saying: “Ho. You may take that into consideration, gentlemen.’-’ Obviously the defendant was entitled to this instruction/ There was no evidence that the defendant had ever acquiesced in any one disregarding the rule,, and to say that a man can knowingly disregard a rule adopted, for his safety, and charge the master for an injury growing directly out of the violation of "that rule, is to hold a degree of liability which nc adjudicated case has ever asserted so far as we can discover; it would certainly viólate every normal conception -of justice and punish for the performance of a duty. '
The judgment and order appealed from should be reversed and - a new trial granted,- costs to abide the event.
Jenks, Thomas and Garb, JJ., concurred; Hirschbeeg, P. J., dissented.
Judgment and order reversed and new trial granted, costs to abide the-event. .