96 N.Y.S. 303 | N.Y. App. Div. | 1905
The plaintiff, a servant, complained of a personal injury due to the negligence of the master in that he omitted to protect his machinery and permitted her to do the work without informing her that it was dangerous and without instructions as to the proper manner in which it should be done. The plaintiff, sixteen years old, was sorting paper caps or covers after they had been discharged onto a table from rollers which were on a table. Their gear wheels were two revolving cog - wheels on and -at the .side of . .the table. The usual station of the plaintiff was at a safe distance from the machinery. She testifies that on the day in question she left her post and under direction of a more, experienced fellow-servant was taking up scraps of paper from the floor and putting them in a ' refuse heap. She had stooped down and after she had gathered an armful she says that in some way or other her fingers were drawn into the cog wheels. She testifies: “I could not say whether or not when I gathered these papers up I leaned up against those cog wheels in any way. All I remember is, some paper had gone through and pulled ray fingers through ; that is all I remember.” Again she testifies: “ I got down on the floor -and gathered the two arms full. I mean by ‘two arms full,’ I took just as much, as I could carry in my two arms,, and in doing so some of the paper went through and- drew my fingers through. T gathered some of the paper up in my arms and was holding it there in my arms, and I raised myself up. I don’t just exactly know how it got caught, but some paper went through and I looked at my
, In Buckley v. G. P. & R..M. Co. (113 N. Y. 540, at 544) a lad of tender years had been at work from noon Saturday until the next Tuesday at eleven a. m. His foo't slipped, and in saving himself he thrust his hands in the revolving cógs and was injured. The court, per Eael, J., say : “We think it is preposterous to say that • it was the duty of the employer to warn him not to put his fingers in between the cogs. It might as well be required to warn a boy twelve years old, who was working about boiling water or a hot fire, not to put his hand'into the water or the fire.” And again (at p. 545) : “ All the law requires is that the minor should be properly instructed as to the danger to which he is exposed, and if he is injured because he has not received such instruction, then, as a general rule, the employer may be held responsible. But where the minor is familiar with the machine, and its character and operation x are obvious, and he is aware of and fully appreciates the danger to be apprehended from. working the machine, the'fact that he is a • minor does not alter the general rule that the employe takes upon himself the risks which are patent and incident to the employment.” ■ In McCarragher v. Rogers (120 N. Y. 534), Bbadley, J., for the'" court, says: “ As applied to a child, that responsibility depends upon the appreciation of danger which knowledge of the condition will necessarily give. The plaintiff knew that if his foot got into the machinery it would be injured. So far his knowledge required him to be sensible to danger. This was apparent to him. ' And so' far as danger was known and obvious to him, the boy may have ■ been legally as responsible for his own protection as a full-grown person.. (Hickey v. Taaffe, 105 N. Y. 26; Buckley v. G. P. & R. M. Co., 113 id. 540.) ” In Ogley v. Miles (139 N. Y. 460), where a lad of sixteen was injured by contact with a buzz saw after two days’ employment, the court say: “ He had operated buzz saws before he did this one;.not for any length of time, but, obviously and from his own testimony, long enough to know the nature
Even if the jury might properly have found that the defendant had not protected the cog wheels in' obedience to section 81 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192), the rule of Knisley v. Pratt (148 N. Y. 372) would apply.
I think that the judgment and order should be reversed and a new trial should be granted.
Bartlett and Miller, JJ., concurred; Rich, J., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.