117 N.Y.S. 1070 | N.Y. App. Div. | 1909
The action is for damages for injury suffered by the plaintiff while in the defendants’ employ, claimed to have been' caused by the defendants’ negligence. The defendants were candy manufacturers. The plaintiff, a boy sixteen years of age, hired out to them as a candy maker’s helper in July, 1902. He had previously Worked
This machine had been prior to October, 1902, worked by a man named Wilbur. In that month the defendants’ foreman told the plaintiff that he had a job for him and that Wilbur would teach him how to operáte the machine. Wilbur did give him instructions in operating the machine, and for three days arid a half the plaintiff operated the machine himself without trouble. Upon the fourth day, by reasori of the candy having been overheated, it stuck to the rollers. The plaintiff called the attention of the foreman to this fact and the foreman stopped the machine and dug out the candy from the little cavities in the rollers. The plaintiff xvas then instructed to put flour upon the rollers. The testimony of the foreman is to the effect that lie was told to throw it upon the rollers as they were moving. The testimony of the plaintiff is to the effect that he was told to put his hand down near to the roller and drop it as the roller was moving; While in the act of putting flour upon the roller his hand was caught between the rollers, resulting in'the injury to two of his fingers, which were afterwards required to be amputated. It is for this injury that the jury has awarded a verdict of $2,000.
It is difficult to see how under these circumstances the defendants can be held liable for this injury. Assuming for the argument that the defendants were negligent in failing to place a guard upon the machine, the absence of the guard was evident. It matters little whether the plaintiff was feeding the machine from one side or the other, or'was putting the flour upon the rollers from, one side or the other. If those rollers wore rolling together, a mere child would have seen, that .to get his fingers between them would cause his fingers to be crushed. The plaintiff, however, urges a distinc
This boy was no mere child. He had been working in a candy factory two years and a half. .There is nothing in the case to indicate that he was not a boy of ordinary intelligence. He had been instructed in the use of this machine by his predecessor, Wilbur, and the criticism that he was called to a dangerous place without notice of a hidden danger is hardly justified by the evidence. The action is not brought under the. Employers’ Liability Act. Any negligence of the foreman in leaving the candy upon the rolls was not the negligence of the master, but was the negligence of a coemployee, as it was negligence in a matter of detail. I can find no ground upon which the defendants can be held liable, and, therefore, recommend that the judgment' and order be reversed and a new trial granted, with costs to the appellants to abide the event.
All concurred, except Chester and Kellogg, JJ., dissenting.
Judgment and order reversed and new trial granted, with costs to appellants to abide event.