Shaw v. Union Bag & Paper Co.

79 N.Y.S. 276 | N.Y. App. Div. | 1902

Parker, P. J.:

Whether a cause of action for negligence, as regulated by the common-law rules concerning the relations between master and servant, was made out against this defendant we need, not inquire upon this appeal, for I am of the opinion that the trial court erred in instructing the jury concerning the- “Factory Act,” so called, and its application to this case.

. Referring to that act, the trial court stated to the jury that it "provides a law which defines the duties of the employer, so that-where a charge of negligence is made that law may assist a court and á jury in solving the main question as to whether the accident occurred on account- of. the negligence of the employer.” The judge then read to them section 81 of chapter 415 of the Laws of. 1897, and after analyzing it somewhat, practically told them that if the plaintiff went upon the platform as a mere volunteer, he was not; within the shelter or protection of that act; but if he was sent there by his uncle to do the work of the defendant, then he came within the protection of the law, whether it be the ordinary common law, or - the statute, so far as the statute does throw around him'any protection..

There was considerably more said in this connection, explanatory of the law, but taken all together I am of the opinion that the. jury may very well have understood that, if the plaintiff was sent there to do his work and did not go voluntarily, it was the duty of the defendant, by reason of this statute, to have properly guarded the set screw in question.

• The shaft and set screw were hung some twelve feet above the floor and the staging was hung some four feet below it. Thus the •danger of contact with it was entirely removed from all employees, except those who should go upon the staging. Evidently it was not' so located that those employed in operating the machinery would come- in contact with it, and evidently the plaintiff was not one so employed. Does the act in question define the duties of an employer towards an employee under such conditions ? I think not. As stated in the act, it is for the “ protection of employes operating machinery.” That is, those whose duties require them to work about machinery in motion ; those who cannot do their work except when assisted by such - motion, and, therefore, must work.in the midst of it. Clearly, the work of constructing this new workroom, of hanging this new shafting and painting the timbers on which it hung, could and possibly should have been done without the shaft being in motion, and no special statute was required to protect the workmen so employed. The defendant might well have understood that no special care or duty was imposed upon it with reference to such employees by the statute in question, and that the common-law rule would furnish the full measure of its liability to its employees under such circumstances, and I think that the jury should have been instructed to that effect.

" The real question for the jury was whether, in their judgment, it was an imprudent and negligent act to send the plaintiff upon that platform to assist the painter while the shaft with its unguarded screwhead was in motion. By the charge there was woven into that question the suggestion that the statute required such screwhead to be properly protected, and that negligence might be predicated upon the defendant’s failure to obey that requirement. But for such a situation as here presented the statute was not needed and does not apply. The cases of Foster v. International Paper Co. (71 App. Div. 47, 53) and Glens Falls Portland Cement Co. v. Travelers' Ins. Co. (162 N. Y. 399) are authorities fending to sustain this view.

For this error in the charge this judgment must be reversed and a new trial granted.

All concurred, except Chase, J., dissenting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.