147 N.Y.S. 1053 | N.Y. App. Div. | 1914
The defendants appeal from a judgment entered upon a verdict in favor of the plaintiff in the sum of $4,000, and from an order denying a motion to set aside the verdict and- for a new trial.
The action was brought in behalf of the infant plaintiff to recover damages for the amputation of a portion of his right
At the time of the casualty, on June 4,1913, the plaintiff was under fifteen years of age, and had been in defendants’ service for about three weeks. Part of his duties was to take meat from a conveying cable and run it through a chopping machine operated by electricity. He did this about ten times a day. As the different customers ordered chopped meat, the butchers would call him and he would go and chop it. The meat was fed into the machine through a funnel that was about four inches in height, four or five inches in diameter at the top, and about two inches in diameter at the bottom. The plaintiff’s method was to feed the meat into the funnel with his left hand, and then to push it down into the machine with a stick that he held in his right. This stick, after being used a little while, would become greasy. After the meat left the machine the first time, it was put through a second time to make it of the proper fineness.
At the time of the casualty the plaintiff was in the act of chopping a pound and a half of meat for which he had received an order. He thus describes what occurred: “The butcher sent me to the meat chopping machine to grind some meat, and I went there and was putting it through the second time when the stick hit the cogwheel and my hand slipped down into the machine.” By “ cogwheel ” he meant the revolving worm. According to plaintiff’s version, when the stick hit the worm it pulled away from him and his hand went down into the machine.
The case was submitted to the jury upon the theory that defendants’ negligence could be established by proof of failure on their part to discharge statutory duties imposed upon an employer of labor. There are two sections of the Labor Law (Laws of 1909, chap. 36, constituting Consol. Laws, chap. 31, as amd. by Laws of 1909, chap. 299, and Laws of 1910, chaps. 106, 107)
The duties imposed by the written law quoted are not imposed upon every employer of labor. It is only an employer of labor in a factory who is subject to the mandate of the provisions upon which the plaintiff rests. This conclusion is manifest from the history of the legislation (see notes relating to these sections in Birdseye’s Gumming & Gilbert’s Consol. Laws of Mew York), and from an examination of the entire Labor Law, which, in a separate article, imposes upon employers engaged in manufacture duties which are distinct from
A fundamental inquiry, therefore, is: Was the defendants’ place of business a factory within the meaning of that word as used in the Labor Law ? The trial court left that question to the jury to be determined as one of fact. Of course it is a question of law. If the jury reached the correct result no. complaint may be made. The question occurs, was the statute properly construed and legally applied ?
The Labor Law, in section 2,
In a case in which an attempt was made to hold the owner of a tugboat liable to his injured employee for employing him while under the age prohibited by the statute, and for a failure properly to guard a shaft, the court said: “We think that a tugboat is neither a factory nor. a ‘ mill, workshop or other manufacturing or business establishment ’ within the meaning of the Labor Law even when liberally construed for the purpose of protecting workmen and especially minors employed where machinery is used. A factory is a structure or plant where something is made or manufactured from raw or partly wrought materials into forms suitable for use. This is the primary definition which was extended by the statute so as to include any ‘mill, workshop or other manufacturing or business establishment where one or more persons are employed at labor.’ The term ‘business establishment’ as thus used means one resembling a mill, workshop or other manufacturing
It would be unduly stretching the meaning of the terms of the Labor Law to hold that by installing and operating, by electric force, a mechanical device for chopping meat for his customers, the owner of a butcher shop converted his shop into a factory and thereby made himself subject to the provisions of the Labor Law governing the employment of labor in a factory. In Schapp v. Bloomer (181 N. Y. 125, 128), the court, speaking of the Labor Law, said: “ In construing this statute we should endeavor to ascertain its fair and reasonable meaning, avoiding a construction which either extends or limits its provisions beyond that which was evidently intended.”
There was no other ground of actionable negligence submitted to the jury for its consideration and the verdict has no legal basis for its existence.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Thomas, Oarr and Putnam, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.
See, also, Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), art. 14, as amd. by Laws of 1910, chap. 353.— [Rep.
Since amd. by Laws of 1913, chaps. 286, 464.— [Rep.
Amd. by Daws of 1913, chap. 529; since amd. by Laws of 1914, chap. 512.—[Rep.