18 N.Y.S. 754 | New York City Court | 1892
This is an action to recover damages for personal injuries alleged to have been received through the negligence of defendant. At the close of plaintiff’s case, a motion was made to nonsuit him on three grounds,—that defendant was not negligent, that plaintiff was negligent, and that the dangers of the machine causing the accident were so obvious and apparent that he assumed the risks thereof. The trial court granted the motion “on the ground that the dangers of the machine were open and apparent.” Should the complaint have been dismissed on any of the three grounds ? is the only question presented to this court. There is no conflict between counsel as to the rules of law governing such cases, but they seriously differ as to their application to the facts of this case. They both agree that if defendant was not negligent, or if the plaintiff was negligent, or if the dangers of the machine which produced the accident were so obvious and apparent to plaintiff, an employe of defendant, that he should have appreciated them, then the nonsuit was properly granted. This requires a careful consideration of the evidence, and inferences therefrom, tending to establish the reverse of each of these three propositions, rather than the citation of the innumerable cases that have been before our courts where the application of these now well-settled principles has been involved. Negligence is a failure to exercise that degree of care which persons of ordinary experience and prudence ought to exercise under similar circumstances. Did the defendant use such care towards the plaintiff? and did the plaintiff use such care in the performance of his work? are questions calling for a critical examination of the circumstances of this ease. Were the dangers of this machine so obvious and apparent that a reasonably careful person should have appreciated them? also rests upon the same circumstances. There is testimony which, if true, tends to show that plaintiff, a young man of 17 years, was employed by defendant for a period of about five weeks preceding the accident. For three weeks he was engaged molding with his hands asbestos pipe covering; then, for two weeks, in the department of the business in which the machine in question was occasionally used. The machine ground two kinds of materials, asbestos being a part of each. The machine was a closed, barrel-shaped structure, from three to four feet in diameter, in which there was a revolving cylinder, with projecting spikes run by steam, and making 400 revolutions per minute. To one side of the barrel, near the top, was attached a box-formed table bed, leading to an aperture therein, on which was placed the crude material, to be shoved in by the aid of a hoe. On the other side of the barrel was an opening, through which the worked material was thrown . out by the rotary motion. There was a shutter to this opening, which conformed to the shape of the barrel, and hung thereto by hinges, and raised upwards when open, and, when closed, the lower edge of the shutter rested on a sill only three or four inches wide, and quite near the floor. The machine was fed in one room, and discharged in another. Plaintiff had no experience or familiarity with machinery, except such as he acquired in defendant’s place. He had been engaged chiefly in farm work. His first experience with machinery was when he was put to work by defendant on this machine about eight days before the accident, and, prior to that, he was only engaged on it three or four times, of about an hour each. It was not in constant use. When he was grinding this kind of material he was directed not to raise the door more than two or three in ches from time to time to let the same out, and then to close it, but, in order to do so tightly, the sill upon