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Kimmerle v. Carey Printing Co.

Supreme Court of New York, Appellate Division

May 12, 1911


APPEAL by the defendant, The Carey Printing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on

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the 27th day of July, 1910, upon the verdict of a jury for $15,000, and also from an order entered in said clerk's office on the 26th day of July, 1910, denying the defendant's motion for a new trial made upon the minutes.


Frederick J. Moses [Frank Verner Johnson with him on the brief], for the appellant.

James C. Cropsey [Harry E. Lewis and Charles M. Davenport with him on the brief], for the respondent.


This is a common-law action for the recovery of damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant, and the jury has found a substantial verdict in favor of the plaintiff, which he now seeks to sustain. The plaintiff had been in the employ of the defendant as a pressfeeder in a printing establishment for about eighteen months, the most of the time in the daytime. He had, at his own request, been transferred to the night gang for the purpose of earning larger compensation. The room where he was at work was about two hundred feet long and fifty feet wide, and was occupied by seventeen large presses, sixteen of which were placed along the side of the building, with the back of the presses, where the printed sheets were delivered, toward the wall on the Brooklyn Bridge side, and about four feet from the wall. These presses were what are known as Optimus presses, a standard make, and there is no suggestion that they were out of order or defective in any respect. On the night of November 23-24, 1903, just after midnight, the plaintiff was instructed by the night foreman to clean up press No. 7, on which he had been working. This required the use of a brush, and not having one at hand plaintiff went to the feeder of press No. 8 and was told by the latter that he would find a brush on a shelf fastened against the wall in the rear of press No. 8, which was at the time in operation. The plaintiff started to walk to the rear of press No. 8, and while so doing his foot slipped sidewise, and in falling he threw out both his hands, his right hand passing through an opening in the heavy iron casting, constituting the frame of the press,

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and being caught between such frame and the shoe of the rack, which appears to be a curved iron or steel in the form of a horseshoe, which moves forward and back, inside of this iron frame, in company with the bed of the press. This shoe is entirely covered by the frame; it at no time passes outside of the frame, and the only way that the plaintiff could have been injured was by placing his hand through this opening in the iron frame far enough to reach this moving shoe; the plaintiff testifies: 'as this shoe works back and forth in the press, it comes up close to the frame inside. So any person walking near that frame or alongside of it, outside the frame, wouldn't be touched by the shoe; I don't think so. The frame of this press is a heavy iron casting.' The plaintiff testified also that some of the presses in this room, where he had worked for eighteen months, had a covering or guard over the end of the shoe or the end of the rack, but there is absolutely no evidence in the case that these coverings or guards were placed upon these machines for the purpose of guarding against accidents. The plaintiff himself testified that 'It never occurred to me this shoe was a thing that would be likely to injure anybody. I never heard anybody around the shop suggest, or outside the shop or in any other printing shop, that a shoe was a thing likely to injure a man if he got his hand or fingers or foot in there. Till I was hurt I never heard of a man getting hurt that way, never heard any man suggest the possibility of it.' 'There is no way a person could be hurt by that shoe, without putting his hand, or arm or leg inside. There is no occasion for a person operating that press to put his hand or his foot or any part of his body inside that frame where this shoe is, while the press is in motion.' It appears that the machines used in this printing office were all from one firm; that some of them had these guards on and that others did not, and no one testifies that they were for the purpose of protecting against accidents of the character of the one involved in this accident, or that experience had ever justified or called for such guards. The provision of the Labor Law relied upon to give character to this action (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 81, as amd. by Laws of 1899, chap. 192; since amd. by several statutes and re-enacted by Consol. Laws, chap.

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31 [Laws of 1909, chap. 36], § 81, as amd.) provides that 'All vats, pans, saws, planers, cogs, gearing, belting, shafting, setscrews and machinery, of every description, shall be properly guarded.' But it does not require that there shall be guards to prevent the possibility of an accident; it is that machinery shall be properly guarded, and clearly the moving parts of a machine, which are entirely within a heavy cast-iron frame, and which cannot be reached without passing a hand or foot inside of such frame, where it is conceded there is no occasion for doing so, is properly guarded, or is not within the contemplation of the statute. 'The intent of the law,' say the court in Kirwan v. American Lithographic Co. (124 A.D. 180, 182), 'was to provide that those parts of the machinery which were dangerous to those whose duty required them to work in its immediate vicinity should be properly guarded. Neither by the Labor Law nor any other are masters called upon to guard against every possible danger. They are required only to guard against such dangers as would occur to a reasonably prudent man as liable to happen. (Glens Falls P. C. Co. v. Travelers' Ins. Co., 162 N.Y. 399, 403.)' The plaintiff himself testified that he had worked in this establishment, employing from thirty to forty men in the press room, for a period of eighteen months, with at least five of the presses without these so-called guards, and that he had never thought of these presses being dangerous, and that he had never heard it suggested, either in this or any other shop, that they were dangerous. Certainly in a period of one year and a half, with thirty to forty men employed in the same room upon the same presses, if there was any such menace as it was the duty of the master to discover and remedy, someone would have suggested it; some of these men must have had that average degree of prudence and intelligence which goes to make up the man of reasonable care, and yet the plaintiff himself negatives the idea that there was such a danger to be apprehended; it had never once occurred to him, although he had noticed that some of the machines had this alleged guard upon them, and that others did not. The language of the court in the Kirwan case, above cited, is pertinent: 'There could be no possible danger from the shaft to persons working at the table. It was completely

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covered by the top of the table and the side piece. * * * So far as the ordinary work of the establishment was concerned, contact with the shafting was completely prevented. It would be impossible to so cover the machinery of a factory that no one could crawl into it and be injured.'

We are of the opinion that, as a matter of law, the Labor Law does not help the plaintiff in this case, and that it was error for the learned trial court to refuse to charge 'that if a machine is so constructed that there is no danger to the person of an employee working on or around that machine, that it is properly guarded.' In Valentino v. Garvin Machine Co. (139 A.D. 139, 144) this court say: 'It would follow that the judgment of nonsuit in this case must be reversed, if it were not for the fact that the evidence establishes no actionable negligence, which is the proximate cause of plaintiff's injury. A master is not bound under all circumstances to guard all of the machines in his factory. Some force must be given to the word 'properly,' and the necessity of guarding must to some extent be determined by the probable dangers from exposure. (Glens Falls P. C. Co. v. Travelers' Ins. Co.,162 N.Y. 399; Dillon v. National Coal Tar Co., 181 id. 215.) It is difficult to understand in this case, considering the position in which the cogs were placed, how plaintiff could get his hand into them in the ordinary conduct of defendant's business. He does not claim that he did. He says that he slipped, and in that way thrust his hand into the machine. The slipping was the primary cause, therefore. But there is no evidence as to the cause of his slipping, or that the same was due to any fault or negligence of defendant.' In King v. Reid (124 A.D. 121, 124) the court, after quoting the opinion of the court in Glens Falls P. C. Co. v. Travelers' Ins. Co. (supra), in discussing printing presses, say: 'All machinery of this kind is liable to ...

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