175 N.Y. 401 | NY | 1903
Lead Opinion
The action is brought by servant against master to recover damages for personal injuries alleged to have been caused by the negligence of the latter in furnishing unsafe and improper tools for use in the work. The details of the operations required in the manufacture of the defendant's product it is unnecessary to recite further than to say that large quantities of paper or pulp were treated with a mixture of nitric and sulphuric acid. The paper was put in an iron cylinder or circular pot about three feet high and eighteen inches in diameter. The acid was then poured into the cylinder, where it was allowed to remain for about half an hour, after which time it was drawn off. The pot had two lugs, or ears, in which there were eyes. When the acid was to be drawn off, two hooks attached to an iron claim running through a pulley above were put into the lugs, the pot raised by a windlass and then its contents dumped into a spout called a whizzer. The plaintiff had been employed in this work between three and four years. The hooks which during this period had been used to raise the pots were long straight hooks, that is to say, the two parts of the hook were parallel and the return part extended so as to bring the point even with the eye through which the chain was attached. The plaintiff had been away from the work for a short time, returning about a week before the accident. During his absence there had been substituted for the hooks previously used short hooks with flaring mouths, the portion of which towards the point was curved so that the point was directed outwards towards the base of the hook. On the occasion of the accident the plaintiff and a fellow-workman put the hooks into the lugs. *404 The plaintiff (whether alone or with the other workman does not clearly appear) then went to the windlass and raised the pot. He returned to the pot, placed his hands upon it to turn out its contents when the hook which had been inserted by his fellow-workman pulled out, that side of the pot fell down and the acid was discharged upon the plaintiff by which he was severely burned and one eye destroyed. It appeared that on one occasion during the absence of the plaintiff from the work the hook had pulled out during an attempt to raise the pot. Expert evidence was given by the plaintiff tending to show that the new form of hook was likely to pull out on account of its shape; that when the chain was tautened in raising the pot, the lug, instead of settling down to the base of the hook, might easily and naturally rest on the curve at the mouth of the hook and thus what is called a forced axis be formed; that in such situation, any movement of the pot would tend to throw it off the hook and that it might slip off the hook without being moved. At the close of the plaintiff's case the learned trial court dismissed the complaint, holding that as the plaintiff had worked for a week with this kind of hooks he had assumed the risk of their use. The judgment on the nonsuit was affirmed by the Appellate Division, a majority of the court believing the evidence insufficient to warrant the submission of the question of defendant's negligence to the jury.
Though the case is a close one we think the nonsuit was erroneous. Doubtless, the plaintiff by his long service, three or four years, assumed the risks which the general plan or method of the operations of the defendant involved. Therefore, the evidence of an expert as to the manner in which acid was handled in other factories and the one in common use was properly excluded. But the plaintiff did not necessarily assume the risk of defective or improper appliances in that plan or method of work, unless the defect was obvious or he had so long used the appliance as to be chargeable in law with knowledge of its insufficiency. He had the right to rely on the presumption that the master had done his duty in furnishing *405
safe and suitable appliances. So far as his experience had gone he had seen that there was no danger of the pot falling off the hooks or of the hooks pulling out of the lugs. The jury might have found that the accident was caused by the change in the form of the hooks. The plaintiff knew of this change, but it does not follow that he knew of the danger which the change involved. If he did not, then continuance in his employment was not an assumption of the risk. (Kain v. Smith,
The question of the defendant's negligence was also for the jury. While it had the right to select its own method of carrying on its work and was not required to adopt the latest or most approved devices, still, it was bound to see that its appliances were reasonably safe and suitable for the purpose. "It was the duty of the defendants to guard against such accidents as could be foreseen as liable to occur by the exercise of reasonable care." (Del Sejnore v. Hallinan,
The judgment should be reversed and a new trial granted, costs to abide the event.
Dissenting Opinion
The iron cylinder or pot was hoisted by means of an ordinary chain and hook, which were fastened to the cylinder by hitching the hook in the ring or ear upon the side of the cylinder. In this case the hook was hitched to the cylinder by a co-servant of the plaintiff. Had he placed the hook in the ring and held it there until the chain became taut the hook could not have slipped out and the accident would not have occurred. The trouble resulted from the fact that the servant did not put the hook in the ring but only the point of it underneath the ring, and as soon as the plaintiff took hold of the cylinder and tilted it up it slipped off from the point of the hook and fell. This, to my mind, was clearly the result of the negligent manner in which the co-servant did his work.
The contention that the plaintiff did not understand the defects in the appliance and, therefore, did not assume the risks of the employment appears to me to have no support *407 whatever in the evidence. The hook upon the chain was of the pattern in common use and it would be difficult to find a farmer's child of ten years of age who would not know that, if the ring was hitched upon the point of the hook, it would be liable to slip off. The appliance was as simple and as well understood as the ordinary hammer or barn shovel, and if the plaintiff or his co-employee had possessed any intelligence whatever he must have known how the hook should have been hitched to the cylinder.
I favor an affirmance.
PARKER, Ch. J., O'BRIEN and MARTIN, JJ., concur with CULLEN, J.; GRAY and WERNER, JJ., concur with HAIGHT, J.
Judgment reversed, etc.