APPEAL by the defendant, the Waterbury 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 the 31st day of October, 1910, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 2d day of November, 1910, denying the defendant's motion for a new trial made upon the minutes and granting the plaintiff an extra allowance.
James J. Mahoney [M. J. Wright with him on the brief], for the appellant.
Frederick S. Martyn, for the respondent.
JENKS, P. J.:
The action is by servant against master for personal injuries. The defendant appeals from a judgment upon a verdict against it at Trial Term. The plaintiff worked at a rubber mill, which had two parallel rollers of smooth steel, each 16 inches in diameter and 36 inches in length. Power was furnished from a moving shaft underneath the floor. The front roller made 8 and the back roller 10 revolutions a minute. The rollers mixed chemicals with rubber and masticated pure rubber. The machine was furnished with a side lever within ready reach of the workman's hand, which acted to engage or to disengage the clutch upon the shafting with a loose pinion wheel. This lever was used to start or to stop the machine when the rollers were free from rubber. But when there was rubber between them the clutch could not be thrown out by this lever except with the application of 'a good deal of force,' because of the friction on the clutch. For that reason, in order to stop the machine 'in case of emergency' and to obviate the danger of the rollers to the workman, the machine was furnished also with a 'safety throw-out,' worked by a foot pedal, whereby the machine could be stopped almost instantly. This 'throw-out' consisted of a long piece of metal which, when the foot pedal was touched, dropped upon the clutch and acted automatically as a wedge to disengage the clutch. The testimony of the plaintiff is as follows: He was replacing between the rollers a piece of rubber which had dropped off into a pan underneath (a frequent occurrence) when he slipped, and the end of his finger was caught between the rollers. There was rubber between the rollers when he was picking up this piece out of the pan. He tried to stop the machine immediately with the lever but could not, whereupon he screamed and two workmen ran over and together stopped the machine by the lever. Meanwhile the plaintiff's hand and arm had been slowly drawn in and crushed by the rollers, so that the arm was afterwards amputated a little space below the
elbow. At the time his finger was caught the rollers were gauged at about half an inch apart.
The learned trial court submitted to the jury as the sole question of liability whether the master had instructed the servant as to 'these brakes and the purpose of the brakes--how to stop the machine in case of accident.' It further instructed the jury that, if the master had done so, their verdict must be for the defendant; but if, on the other hand, the master had not instructed the servant, the further question arose whether the servant knew of the safety brake and the safety appliances; and that, if he knew of that, the failure of the master to instruct would not make any difference. The learned court further told the jury there was another question in the case--whether the servant assumed any obvious danger--anything which a reasonable man should have perceived, and which he should have observed and avoided.
The duty is devolved upon the master of a servant, hitherto in the capacity of a common laborer, before the laborer is put in charge of machinery with which he is not acquainted, to instruct and to qualify him for that new duty. ( Brennan v. Gordon, 118 N.Y. 489.)
The plaintiff testified that he was a potter by trade; that he was first put to work by the master at emptying rubber out of bags, but that shortly thereafter he was told to go on night work, and that the assistant foreman would show him what to do; that the assistant foreman showed him how to put the rubber into the machine, and how to cut it; that it took the assistant foreman a few minutes to show him this; that the assistant foreman then stood there awhile and then went away, and that the assistant foreman did not say anything else to him. The plaintiff worked at two mills, which were of the same general character, of which one he calls the 'little mill' and the other the 'big mill.' He testifies that no one ever showed him how to stop the machine or to start it. His work was in the night, and he testifies that both when he came to the work and when he left in the morning the mills were going. He testifies that he stopped the 'little mill' by the lever twice when he had seen other people stopping it, but he had never stopped the 'big one' (referring to that at which
he received the injury); that he had no reason to stop it, and when he had occasion to stop the 'little mill' he never did so when rubber was in it. He testifies that during his work there he had never seen any mill stopped by any one when there was rubber between the rollers; that he believed that he could stop the machine by the use of the lever; that he had never noticed this foot pedal nor had seen it used, and that he did not know that the machine, or any other machine in the factory, was equipped with it.
It is contended that the failure to instruct was not the proximate cause of the accident. This is true if we mean that such failure was not the cause of the plaintiff's finger being caught between the rollers. That entanglement was due to his slipping while engaged in his attempt to place rubber between the rollers, which was a part of his work. That is, I infer from his testimony that his finger went down between the rollers in consequence of his slipping. He does not complain of this 'accident,' but of the fact that the master who had furnished a device for stopping the machine instantly when it was filled with rubber, had omitted to instruct him of the existence and the use thereof, so that he was unable in his ignorance to stop the machine until the rollers had gradually drawn in not only his finger, but his hand and then his arm. The evidence does not justify a conclusion that the plaintiff was negligent as matter of law in bringing his finger in contact with the rollers, and on the other hand there is no negligence imputable to the master in the maintenance of the machine so that such contact with the rollers was possible. But the proposition is that, after the plaintiff without legal fault on either side came to a condition of some injury which unless changed must result in greater injury, such condition was not changed because the master had not instructed the servant as to ...