39 N.Y.S. 363 | N.Y. App. Div. | 1896
This action was begun March 18, 1892,- by an employee against his employers to recover damages for a personal injury, caused, it is •alleged, by their negligence. During 1891 the defendants were* and ever since have been, partners, under the firm name of the Truss and Cable Fence Company, at Hornellsville, N. Y., engaged in manufacturing wire for the construction of fences. In April and May, 1891, the defendants occupied a room in the factory of the Hornell Iron "Works in which there was machinery operated by the employees of that corporation. The room was occupied under a contract by which the defendants agreed to pay to the corporation •the wages paid by it to such of its employees as should be engaged on defendants’ work, .with, an advance of fifty per cent on such wages, and also pay for the material which it should furnish to the defendants. Before April 11-, 1891, only two persons worked in
The plaintiff testified that when injured he was twenty years old, and that until he became sixteen years of age he attended a common school at Mansfield, Pa., where he -received a -fair common-school education. When he was sixteen years old lie began work at blacksmithing at Mansfield and continued such work at that place, at East Troy, Pa., at Cortland, n. Y., at Hornellsville, in-the shops of the Erie railroad, and in-a shop on a stock farm near- Hornellsville, until about the time he was-employed by -the defendants. He testified that he had not worked much about machinery, but that -in the room in the Erie shops in which he worked there were a trip hammer and a grindstone which were operated by power transmitted bybelts and a line shaft.
This was' the situation of the-room and of the business carried on in-it on the 11th of April, 1891, when the plaintiff was employed by the-defendants, and such was the plaintiff’s previous experience as a mechanic. It should be borne in mind that before April eleventh 'only -two persons, Dyer and his son, were employed in- this room, rind after that date only three persons, the plaintiff and the -Dyers.
. -April 11, 189R-the defendant Charles O. Rose,, in behalf of his .firm, employed the plaintiff and directed him to report to William
“ The first work I did after I went there, Dyer showed me how to feed the machine and put it in operation, and he showed me how to place the spools in the machine, with the wire on them, and how to oil it. I don’t think he gave me any other instructions at that time. The first work I did was to see that the wire was -kept in the machine, and feed the machine with the wire. It did not require all my attention while attending to-that machine, and I did other work besides feeding this machine. I helped around at different things; whatever he wanted me to do; to sweep out the place and pick up pieces of iron on the floor and put things in place, and when he wanted any help to lift iron or anything, I did it. The wire was wound on spools which I fed to the machines. The spools were set on pins, and there was four places where the spools set in, and they kept revolving all the time, and when a spool was empty we put another in its place. Dyer did not give me any instructions as to the method of working that machine. He did not, at any time, call my attention to any danger connected with the belting, or with any belting, or shafts or shafting, nor did either of the defendants, or any other person. They never described to me any method of lacing belts or belting. * * * At the time I was employed there, there was a second machine in process of construction, and similar to the other machine, and was designed for the same -purpose. Dyer and his son were working upon the new machine. Ho other person, to my knowledge, other than Rishel and Rose, came into the inclosure and gave directions about the work. I helped Dyer put the second machine together. There was a time when the old machine broke down, and when that occurred T would inform Dyer, and he Avould fix it or see it fixed.”
In the forenoon of May twenty-ninth the new machine was completed, and, while being tested, the belt connecting it with the line shaft broke twice. When it first broke, Dyer mended it alone, and the second time a new piece of belting was procured, and, after-dinner, William W. Dyer, assisted by the plaintiff, began to splice or unite the belt. At this time the shaft, which was connected with
The plaintiff described the accident as follows : “ After I returned from dinner, Friday afternoon, there was something said to me in regard to some service connected with the new machine. That was the 29th of May, 1891. I was wiping the old machine with a piece of-' waste, and Dyer spoke to me and motioned with his bead formé to- come to him; and I went over, and he told me to go and get a ladder and put' it up against the shafting, and get on to it and hold the belt, and I went out and found the ladder and put it against the shafting and got on to it, and stood against the ladder with my right side against the ladder. I think the shaft was about three inches in diameter. The Court: What did he tell you to get on the ladder for ? A. To hold the belt that was to be attached to the new machine. Q. Did he tell you where to go with the ladder ? A. He did motion with his hand to put it against the shaft over there. 1 couldn’t say, after I started for the ladder, whether Dyer did anything at the time he told me to go and put the ladder against the shaft. He did not do anything at the time he made the remark. I have heard that this shaft was revolving 130 times a minute. The shaft was probably two feet above the top of the inclosure, and a little to one side, may be a foot or eighteen inches to the south, so that the shaft was. outside of the inclosure. The shaft was eighteen inches or two feet from the joists, and revolved toward the inclosure and away from the side upon which the ladder was placed, and the ladder was outside of the inclosure, and the completed machine stood within the inclosure. The belt, when I returned with the ladder, was over the shaft. The new completed machine was within the 'inclosure, and 15 or 11 feet from the line shaft.- After 1 got on the ladder, Dyer told ine to take hold with my right hand and grip the belts together, and I did so. I leaned with my right side against the ladder, and put my arm through the ladder and gripped ■the belts together, six or eight inches below the shaft. The top of. my head, with respect to the shaft, I should say, was about even ■ with the shaft. My right arm, with reference to the shaft, ás I
The Dyers were engaged solely on the work of the defendants, were wholly subject to their control, and were their employees. The fact that the defendants paid the Horn ell Iron Works for the services of the Dyers did not render them employees of that corporation as between themselves and the defendants, or as between
The judgment and order should be reversed, and a new trial granted, with costs to abide the event.
All concurred, except Adams, J., not sitting.
Judgment and order reversed, and a new trial ordered, with costs to abide the event.