1 N.Y.S. 561 | N.Y. Sup. Ct. | 1888
This action was brought to recover damages for a personal injury. The defendant was the proprietor of a brewery in the city of Buffalo, and one Conrad Hammer was his foreman in charge, conducting the brewery. The plaintiff was in the employ of another person, engaged in storing ice on the defendant’s premises. Hammer, the defendant’s foreman, had some large 30-barrel casks that he desired to lower into the cellar, and, being short of help, called upon the plaintiff and his son to assist him in lowering the casks.
The appellant claims that the court erred in refusing to direct a verdict for the defendant; that the evidence failed to show negligence on the part of the defendant; and that the plaintiff was guilty of contributory negligence. We are, however, of the opinion that the evidence was of such a character as to make it a question for the determination of the jury. The evidence as to whether there .were pins put in the ends of the shaft, so as to keep the handles in position, was conflicting. Hammer testified that he put in spigots, and then drove in 10-penny nails. The testimony of other witnesses, however, tends to show that at least on one end of the shaft, where the handle first flew off, there was no fastening. The room was but dimly lighted; the plaintiff was a stranger in the place, unfamiliar with the machine, and was placed at work upon the handle at the other end of the shaft; and we are hardly willing to say, as matter of law, that he was guilty of contributory negligence in not observing that the handles were not properly fastened, or that the brake was not a fit and proper one to use. As to the negligence of the defendant, it was his duty to supply suitable, proper, and safe apparatus, in proper repair, with which to do the work. The windlass used was the kind in ordinary use, and no question is made but that it was of proper construction, and reasonably safe, if it had a brake. But it appears that no brake was constructed upon the machine. A fly-wheel was put on for that purpose, but the necessary wood-work had never been attached. Hammer, the foreman, testified that it would not be safe to undertake to lower the casks without one. It further appears that the plank used on this occasion was frozen and frosty, and that in pressing it against the wheel it would not produce that amount of friction that was necessary to retard the movement of the windlass in handling so heavy a cask. The evidence further disclosed the fact that when the machine was originally constructed and put up for use it was furnished with wire pins, ■with which to hold the handles firmly in place, but that these pins had been lost. This evidence presented two questions for the determination of thejury: First, as to whether or not the defendant had exercised proper care and diligence in supplying a suitable and safe brake for the machine; and, second, whether or not he was guilty of negligence in not supplying other wire or wrought-iron pins with which to hold the handles in place after the loss of those that came with the machine. These questions were properly submitted to the j ury by the trial court. The evidence is sufficient to sustain the verdict, and we must regard these questions as settled by it.
Upon the trial Hammer was sworn as a witness for the defendant, and testified to having worked in a number of breweries, and then testified as to the manner in which he fixed the windlass before the accident; that he had always fixed it in that way, and had so fixed the machine in Jost’s and Lang’s breweries, when he worked in those places. Upon the cross-examination, he was asked what sort of a machine they had in Jost’s brewery. This was ob
Ho other questions are presented which require discussion here. The judgment should be affirmed. So ordered.
Barker, P. J., and Bradley and Dwight, JJ., concur.