RUDOLPH MANSER, an Infant, by JOHN MANSER, His Guardian ad Litem, Respondent,
ASTORIA VENEER MILLS, Appellant.
APPEAL by the defendant, the Astoria Veneer Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 1st day of February, 1911, upon the verdict of a jury for $1,200, and also from an order entered in said clerk's office on the 7th day of March, 1911, denying the defendant's motion for a new trial made upon the minutes.
Warren C. Van Slyke [George M. Pinney, Jr., and James B. Henney with him on the brief], for the appellant.
George F. Hickey [M. P. O'Connor with him on the brief], for the respondent.
The complaint alleges the employment of the plaintiff by the defendant at its veneer plant at Ryker avenue, Astoria, and that 'while in the lawful performance of such work, and without any fault whatsoever on his part, his hair was caught in certain unguarded and unprotected cogwheels, being part of the machinery in defendant's said mills, and this infant plaintiff was pulled in by the hair and a portion of his scalp was torn off and his head was seriously injured, and all of which was solely caused by and solely the result of the negligence and carelessness of the defendant, its agents and servants, in failing to give this infant plaintiff a reasonably safe and suitable place in which to perform his work, and in failing to properly guard and protect the said cogwheels in which plaintiff's hair was caught, but on the contrary leaving the same unguarded and unprotected, in violation of the provisions of chapter 415 of the Laws of 1897, known as the 'Labor Law of the State of
New York,' and also by reason of the further negligence and carelessness of the defendant in employing this infant plaintiff when he was under the age of sixteen years, and between the ages of fourteen and sixteen years, and in not having a certificate executed by a health officer,' etc. The plaintiff's bill of particulars further alleged that the 'respect in which the place furnished to plaintiff in which to work was not reasonably safe and suitable, is that the floors about the machinery where plaintiff was compelled to work was [were] oily, dirty and slippery and that the cogwheel of the machine about which he worked was unguarded and unprotected in violation of section 81 of chapter 415 of the Laws of 1897,' and that the 'respect in which the cogwheels mentioned in plaintiff's complaint were not properly guarded and protected is that there was nothing about said cogwheel to prevent the same from coming in contact with the person of this plaintiff.'
The issue fairly tendered by this complaint, as amplified by the bill of particulars, was that the plaintiff, while employed upon a machine in the defendant's plant, was injured by reason of the unguarded cogwheels in connection with an oily, dirty and slippery floor, when, as a matter of fact, the plaintiff was not employed to work upon a machine in the mill at all, but was engaged for the purpose of nailing cleats upon the ends of boards mounted upon a two-wheeled cart, after the same had been delivered in the yard of the mill by means of a long table, equipped with rollers and operated by cogs, which carried the lumber away from the machines. This table, known as a conveyer, was one hundred and five feet long, a trifle over four feet in width and thirty-four inches in height. At intervals of about four feet there were rollers eighteen inches in length and extending crosswise of the table, and operated by cogwheels, some of the witnesses testifying that these were fully protected, while the plaintiff and his witnesses testify that they were exposed at the ends. This table extended away from the mill out into the yard, and the duty of the plaintiff was to go to a building about seventy-five or eighty feet from where he was injured, get his cleats, and go to the 'buggy,' at a distance of about thirty feet from the place where he was injured, and nail them upon the ends of the boards
mounted upon this 'buggy.' His place of employment was the lumber yard of the defendant, and his duties had no relation whatever to the machine (the table with rollers) which concededly worked the injuries, and the learned trial court properly held that the plaintiff had no standing under the provisions of the Labor Law, except as the leaving of the cogwheels unguarded might have a bearing upon the question of the reasonable safety of the place afforded him for his work. The theory upon which the case was tried, and upon which it was given to the jury, was that at the particular point of the accident there was a mixture of oil and sawdust, causing a slippery condition of the floor, which had not been observed by the plaintiff during his nine or ten days' employment there, though being familiar to some of the other witnesses, and that the plaintiff, having been instructed by his foreman to place the cleats under this table, and to take them from thence to the point where they were to be used, had in obeying this instruction stepped upon this slippery place and slipped, throwing him into the unguarded cogwheel, producing the injuries. The learned trial court, in its charge to the jury, said: 'A very important question here * * * relates to the directions which the plaintiff says were given by Mr. Augustine, the foreman, to the young man to carry the cleats from the place where they were found and put them under the table, and then take them from there to the place where they were to be nailed on to the boards. He says those were the instructions which were given to him. On the other hand, Mr. Augustine says that he gave him no such instructions; that he was told to take them directly over to where the buggies were. * * * That is an important question in the case for this reason, if such direction was not given, if you shall take the story of Mr. Augustine in preference to the story of the plaintiff, * * * and you shall say no such direction was given to put those cleats under the runway, and that the placing of them there was the voluntary act of the plaintiff himself, that defeats his cause of action.' Again the court said: 'So you see, gentlemen, it is quite important to give consideration to every question in this case, not only the question of direction, but the question of conditions
which were there, the question of the direction of the work given by the foreman, and the claim that a part of the direction in connection with the work was the putting of the cleats under the table at this particular place where, as the plaintiff says, he was exposed unwarrantably, and in violation of the master's duty, to accident and injury, even while he was exercising due care on his part.'
It is true that this charge was not excepted to on the part of either party, but the defendant's exception to the denial of his motion to dismiss the complaint fairly raises the issue, as well as the order denying the motion for a new trial on the usual grounds. The respondent, evidently recognizing the weakness of the case upon the theory thus presented, urges upon this appeal that the proximate cause of the accident was not the alleged direction of the defendant's foreman, but the slippery condition of the floor at the point of the accident, but it is very certain that if the plaintiff had not been nearer to the table than was necessary in merely performing the services for which he was employed in the natural way, the slippery floor would have been of no moment in the case, the accident could not have happened. The undisputed evidence of both parties is that it was not necessary for the plaintiff to go anywhere near to this table, either in getting the cleats supplied by the defendant or in nailing them to the boards upon the buggies. Indeed the evidence is on behalf of both parties that the plaintiff, in following out the alleged instructions of his foreman, would require much more time than in merely going to and from the building where the cleats were kept and the buggies, and the only possible relation of the slippery floor to the accident which befell the plaintiff was due to the fact that the plaintiff had placed or was placing these cleats under the table. In other words, the crucial fact in the case, upon the theory on which it was ...