60 N.Y.S. 873 | N.Y. App. Div. | 1899
This action is servant against master, to recover damages for personal injuries. The defendant was engaged in the manufacture of pumps and hydraulic machinery. The plaintiff had been in the employ of the defendant in that business for some nine years previous to the accident. His work was in the operation of tools and machines used to cut metal. At the time of .the accident it became necessary for him to oil a tool held by a ram which was moved upward and downward with great frequency. The spout of the oil can used by the plaintiff for this purpose was caught by the ram and bent over upon his finger, injuring it so as to require its amputation. The only charge of negligence on the defendant’s part upon which the cause was submitted to the jury was that the oil can should have had a long spout instead of a short one. The plaintiff testified that until about three weeks before the accident he had always used a can with a long spout, so as to avoid the danger of his hand being caught in any of the machines; that at this time he left the can with the long spout at a machine which he had been operating, from which it was carried away by some person, and he was unable to recover it. He further testified that he thereupon applied to the foreman for another, can.; that there was no can with a long spout in the storeroom, and hence he was compelled to take a can with a short spout; that he protested several times against the use of such a can and that the foreman promised to get another can with a long spout. There was no dispute as to how the accident occurred. The foreman to whom the plaintiff claims to have applied for a can
The jury having rendered a verdict for the plaintiff, we must assume that he complained to the foreman of being compelled to use thd short-spout can, and that the foreman promised to replace it with one having a long spout. There is no question in the case as to the extent of the plaintiff’s knowledge of the dangers arising from the use of the short-spout can. He testified: “ Whatever danger there was .in using a short-spouted can I knew myself.” In fact the plaintiff’s testimony was the only evidence on which the jury , could find that the use of the short-spout can was dangerous. We are not entirely clear that this testimony was sufficient for the purpose. The evidence of the foreman that every workman in the shop, other than the plaintiff, used the short-spout can, was nót con-ti'adicted, nor was there any evidence that the long-spout can was adopted and used in similar establishments. The master was not bound to furnish .the best-known appliances, but such only as were reasonably safe and suitable for the work. Of this rule the learned trial court in its charge gave the defendant the full benefit; but if the can furnished to the plaintiff was the appliance ordinarily used for. the purpose, we very much doubt whether the question should have been left to the jury at all. However this may be, the question still, remains whether the plaintiff can be heard to complain of the insufficient or defective character of the appliance which he used.
It is true that in many cases the fact that an employee knows of-the defective character of the appliances furnished by the master will not preclude the former frora recovering for injuries occasioned by such defects, In the use of complicated machinery it may well be that a workman is entirely aware that there is something defective or out of repair, and yet is ignorant of the danger or its extent to which he is subjected by such defect or want of repair. He has the right to rely on the assumption that the master will fulfill his legal obligations to him, that is, use reasonable care to guard him
The judgment should be reversed and a new trial granted, Costs to abide the event.
All concurred.
Judgment and order reversed and new trial granted, costs to, abide the event.