Sann v. H. W. Johns Manufacturing Co.

16 A.D. 252 | N.Y. App. Div. | 1897

O’Brien, J.:

As in our view the inferences to be drawn from the facts proven are fatal to plaintiff’s recovery upon one ground, which we shall hereafter discuss, it is unnecessary to critically examine the various grounds so ably presented by the appellant, upon which it is claimed the liability of the defendant rests. But we shall assume that it was clearly shown that the method used in the defendant’s factory to put on this belt was very risky and dangerous, and in violation of all the principles of mechanics. It is clear that, however defective the belt or the machinery employed, unless these were the proximate cause of the death of plaintiff’s intestate — or in other words, unless the negligence of the defendant was the, proximate cause — the plaintiff cannot recover. The deceased had charge of the job of repairing, and, to use the language of one of the witnesses, “if he saw anything was necessary to be done, he did it. This job they had was fitting the steam pipe and to see that everything was right on the machine. I know that it. included seeing that everything was right on the machine because, without the steam pipe, the washer would not be of any use.”

After they had finished their job, they attempted to put the belt on the washer, and this without its being their, duty, or without receiving instructions to do so. On the day in question there was no felt to be washed and none in the room, and, therefore, the use of the washer was not then required. In repairing the steam pipes, Sann and Schroeder moved the felt washer from its original position, and the reason given for attempting to adjust the belt was to see if it was restored to its place, and it is a fair inference that failure was due to the fact that the belt, at the time they tried to place it on the washer, was not long enough to reach from the shaft to the pulley. While they were attempting to do this without instructions, or without its being in the line of their duty, O’Day volunteered his assistance. It was by this effort, in which the three were engaged, that the dangerous situation was created which resulted in O’Day’s being placed in jeopardy, in rescuing whom Sann was killed. If they had' not undertaken to handle the belt, the place where they were at work and" the machinery that was in the room-were in no sense dangerous, because the evidence is that, the belt was tied in a knot, hanging up away from where the felt washer was standing. There was nothing in the condition of the belt that was not perfectly apparent and obvious to those then present by the use of ordinary observation. The situation before Sann and Schroeder attached the belt was one having no danger to any of the employees, and whatever danger came afterwards was created by their own acts. They assumed all the risks there were connected with the belt, because they were handling it when there was no necessity at all for their doing so, and it is difficult to get away from-the inference of their negligence in attempting to place it on. the pulley while the felt washer was so far away from the shaft that it was apparent that the belt Was too short. .And it is to this circumstance, undoubtedly, that the accident was due, because it created the difficulty of getting the belt to run from the revolving shaft to the pulley.

Upon these facts, the rule applied by the learned trial judge finds, full support in authority. As said by him at the end of the case : “All this shows that, even if there was prior negligence on the part of the defendant in allowing the machinery to get out of order and repair, or in not complying with the requirements of the factory-law, such negligence was not the direct and proximate cause of the accident,-but only the remote cause. This is not enough. Negligence to be actionable must be the direct and natural and proximate cause of the injury.” Undoubtedly, if the proximate cause of the perilous position in which O’Day was placed when caught by the belt was the defendant’s negligence, then the fact that O’Day himself might have been guilty of contributory negligence (which would prevent recovery in a suit brought by him) would- not prevent a recovery by the plaintiff. (Eckert v. The Long Island Railroad Co., 43 N. Y. 502; Spooner v. D., L. & W. R. R. Co., 115 id. 22; Gibney v. State, 137 id. 1.) These cases, recognizing the natural ' instinct in man to go to the rescue of his fellowman in a situation of imminent peril, hold that it is not negligence per se for one to voluntarily risk his own safety and life in attempting to rescue another from impending danger. As said in Eckert v. The L. I. R. R. Co. (supra): “ The law has so high a regard for human life that it 'will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons.” That case was one in which a child non sui juris went upon the tracks of the defendant company, and the plaintiff, seeing its danger from an approaching train which was being negligently run at the time, rushed to its rescue, and in so doing received the injuries complained of.

So in the Spooner Oase {supra), the theory of plaintiff’s contributory negligence was not permitted to prevail, it there appearing that she went upon the track to warn off other children who were in danger and in so doing caught her foot between the rail and plank crossing, and while in that position was injured. In the Gibney Case {supra) a child fell into a canal through an opening in a bridge which was negligently permitted by the defendant to remain in a defective state. The plaintiff’s intestate (her husband) plunged into the canal to recover the child and in so doing was drowned. There, in answer to appellant’s contention that there was no negligence towards her husband, the court say: “It is doubtless true that, except for the peril of the child occasioned by his falling through the bridge into the canal, there would have been no connection between the negligence of the State and the drowning of the father. But the peril to which the child was exposed was, as has been found, the result of the negligence of the State, and the peril to which the father exposed himself was the natural consequence of the situation. It would have been in contradiction of the most .common facts in human experience if the father had not plunged into the canal to save his child.”

These cases, therefore, support the view that if the negligence of the defendant had placed O’Day in the perilous position from which he was rescued by Sann, and, actuated by • the common impulse of humanity, Sann had gone to his rescue and in that effort had met his death, a recovery for such death would not be affected f)er se either by a consideration.of ■ contributory negligence or by the argu- ■ ment that there was no negligence towards Sann himself. We fail to see, however, how a recovery can be sustained against the defendant upon the theory of negligence, when no evidence is presented from which the inference can be deduced that O’Day’s position was .in any way proximately caused by the defendant’s negligence.However humane and meritorious the conduct of Sann in going to the rescue of O’Day, it is not a sufficient ground upon which to predicate liability as against the defendant for the resulting injuries, where the latter’s negligence was in no way the proximate cause. As the evidence, therefore, failed to sustain the burden, which in this respect was placed upon the plaintiff, of showing that Sann was injured-by attempting to rescue from a perilous position one who had been placed therein through the negligence of defendant, the disposition made by the -trial .judge was right, and the judgment appealed' from must be affirmed, 'with costs.

Van Brunt, P. J., Williams, Ingraham and Parker, JJ., concurred.

Judgment affirmed, with costs.