Appeal from Kings County Court.
Action by Daniel Deegan against the Gutta Percha & Rubber Manufacturing Company. From a judgment for plaintiff, and from two orders, respectively, denying a motion to set aside the verdict and a motion for new trial, defendant appeals. Affirmed.
Frank V. Johnson, for appellant.
Martin T. Manton, for respondent.
Argued before HIRSCHBERG, P, J., and WOODWARD, JENKS, RICH, and MILLER, JJ.
This action is by a servant against master for negligence. A notice under the employer's liability act (Laws 1902, p. 1748, c. 600) was served. The servant worked at a mill that was one of a series all worked by a shaft that ran underneath them and that was driven by steam power. The mill consisted of two rollers, turning toward one another, on the same plane. The rollers were of iron 12 1/2 inches in diameter and 36 inches long. There was a clutch and pinion wheel on the shaft, which transmitted power to a large gear wheel which turned the back roller, which worked another gear wheel that turned the front roller. The servant's work was to feed the rollers from above with crude pieces of rubber to be ground down. The distance between the rollers could be changed by screws, and on the [115 N.Y.S. 292] day of the accident the plaintiff had spaced them at 1/2 an inch. While at his work the plaintiff's right hand was caught in the rollers, and then his left hand, so that he lost his right hand 3 or 4 inches above his wrist, and the thumb, the first and middle fingers, and a part of the palm of his left hand. The learned trial court at the close of the case submitted certain specific questions to the jury which were as follows, and to which the jury gave the answers indicated:
" (1) Was the plaintiff himself guilty of any negligence that contributed in any degree to his getting hurt? No.
" (2) Was the plaintiff's hard caught solely on account of the negligent failure of the defendant to maintain the bearings of the back roller in a condition reasonably safe for the plaintiff to work upon the mill? No.
" (3) Was there a negligent failure on the part of the defendant to maintain in reasonably safe condition a shifter for detaching the clutch, that the plaintiff could have operated after his right hand was caught to stop the mill and thereby prevented his being injured to the extent that he was injured? Yes.
" (4) Did the plaintiff assume the risk of injury from worn bearings of the back roller, if you find such worn bearings existed? No.
" (5) Did the plaintiff assume the risk of injury from the absence of the shifter, if you find that it was absent? No.
" (6) What is a fair compensation for any injury that you may find that resulted solely from the negligence of the defendant, if any such be found by you? $10,000.
" The Court: In fixing this sum of $10,000. I want it understood whether the jury have fixed those damages with reference entirely to the damage which happened from the lever not being there. Do you understand? You have said that the plaintiff's hand was not caught on account of any negligence connected with the roller. That question you have answered, ‘ No.’ So, of course, you could not give any damages for his hand being caught in that way. Therefore the damages that you have found must necessarily be the damages which came from the negligence in not having the shifter there, and which would be only for a part of the damage. You understand that, do you? (The jury answer in the affirmative.)"
The learned counsel for the appellant admits in his points that the jury were " clearly justified in finding that the mill in question was not equipped with ‘ a shifter for detaching the clutch that the plaintiff could have operated after his right hand was caught to stop the mill," ’ but contends that a finding that there was " ‘ a negligent failure on the part of the defendant’ to provide or maintain such a shifter is wholly unwarranted by the evidence." This contention rests upon the proposition that under the circumstances such a device could not have been worked by the plaintiff to throw out the clutch after his right hand had been caught; and it is pointed out that there is testimony that before the jaws of the clutch became worn by use, the pressure (10 to 25 horse power) during the grinding was so great that one man could not have thrown out the clutch by the shifter. But, on the other hand, the plaintiff's witness Beyer, who had worked in the defendant's shop as a machinist and was familiar with this particular mill, testifies that, assuming the mill to be loaded (i. e., grinding down the ...