16 A.D. 252 | N.Y. App. Div. | 1897
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
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
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
Van Brunt, P. J., Williams, Ingraham and Parker, JJ., concurred.
Judgment affirmed, with costs.