JOHN J. CASEY, as Administrator, etc., of ANNA L. CASEY, Deceased, Appellant,
THE DAVIS & FURBER MACHINE COMPANY, Respondent.
APPEAL by the plaintiff, John J. Casey, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 23d day of May, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the Onondaga Trial Term.
Stewart F. Hancock, for the appellant.
Louis L. Waters, for the respondent.
Plaintiff's intestate, Anna L. Casey, began an action in her lifetime for the same cause of action as here against this defendant. The cause was tried and a verdict rendered in
her favor and judgment thereon entered on March 20, 1909. Defendant appealed to this court on April 15, 1909. Miss Casey died on April 14, 1909. On the 7th of September, 1909, her father, the plaintiff, was appointed administrator of her estate and was later substituted in her place as plaintiff and respondent. On the 4th of May, 1910, said appeal was determined in this court and the judgment reversed and a new trial granted (see 138 A.D. 396). Plaintiff thereafter and on July 9, 1910, appealed to the Court of Appeals, and thereafter and on December 16, 1910, said appeal was withdrawn by consent of the Court of Appeals, on motion of plaintiff. No new trial of said action has been had, but on February 23, 1911, plaintiff began this action for the same cause, which came to trial on May 23, 1911, and resulted in a nonsuit at the close of plaintiff's case.
Defendant is a Massachusetts corporation engaged in the business of manufacturing carding machines and other machinery for woolen mills. The Crown Mills is a corporation owning and operating a woolen mill at Marcellus in the county of Onondaga. Plaintiff's intestate was an employee in the Crown Mills. She was injured on January 17, 1907, at the mill where she worked by an iron ball which fell from a machine on the floor above and rolled through a hole in the floor made for and through which a belt was running. The ball struck a large revolving pulley underneath this hole and was thrown or deflected so as to strike Miss Casey's head as she was working at a machine on the floor below some distance away from the pulley. It is conceded that the injury she received subsequently caused her death.
On the 28th of June, 1906, the Crown Mills made a contract with defendant by which defendant was to manufacture for it for use in its mill at Marcellus a carding machine. It seems to have been the understanding, although the written contract did not so provide, that defendant was to send a man to the Crown Mills to set up and adjust this carding machine ready for use. The machine was made and shipped to the Crown Mills, the parts not being put together, and on or about January 3, 1907, one Arthur Clow, an employee of defendant, was sent by defendant to Marcellus to set up this carding
machine at the Crown Mills. His wages were paid by defendant, but his expenses to and from Marcellus were paid by the Crown Mills, together with his expenses at Marcellus. On the 17th of January, 1907, he had practically completed setting up the carding machine, and had also bolted to the carding machine another machine, to be used in connection with it, which belonged to the Crown Mills, and which had not been purchased of or furnished by defendant. It was called an automatic feed machine, and was used to feed the wool into the carding machine. The iron ball which injured plaintiff's intestate was a part of this feed machine. As Clow had completed bolting the feed machine to the carding machine he noticed that the iron ball was insecurely bolted to the feed machine, so that it would not properly perform its function, and he took a wrench to tighten the nut on the bolt which fastened it to the machine, and in some manner not explained by the evidence, and apparently not known to Clow, who was a witness for plaintiff, the ball fell onto the table of the feed machine, rolled off onto the floor, rolled around to the further side of the belt which was running through this hole in the floor, and down into the hole, which was just large enough to permit the ball to pass through. This hole was some twelve to eighteen inches away from the machine. It does not appear whether Clow was asked to connect the feed machine to the carding machine by any one in the employ of the Crown Mills, or whether he did it on his own motion. There is evidence from which it might be found that he could not successfully test the carding machine without having the feed machine attached. It does not appear that defendant had undertaken to connect the feed machine with the carding machine.
The question in the case is whether Clow in the act of connecting the feed machine to the carding machine and adjusting the iron ball on the feed machine was acting as the servant of defendant in the business of defendant, or rather whether there is evidence sufficient to require the submission of this question to the jury as a question of fact.
As respects this question, it does not differ from that presented upon the appeal in the former action. Four justices of this court concurred in the ...