APPEAL by the defendant, the International Ore Treating Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 5th day of September, 1911, as
resettled by an order entered in said clerk's office on the 26th day of September, 1911, denying the defendant's motion for a new trial made upon the minutes.
E. Clyde Sherwood, for the appellant.
Jules H. Baer [Herbert S. Murphy with him on the brief], for the respondent.
Plaintiff was in defendant's employ on June 13, 1907, operating a machine known as a 'jointer,' some seven feet long and fourteen inches wide, set at an elevation above the floor of one of the rooms in the defendant's place of business. This machine contained knives projecting an eighth of an inch above the level of the table, and revolving when in operation towards the workman. There was an iron gauge, six inches high, against which was pressed the wood sought to be cut, which usually comes in pieces two feet long and two inches wide. While the knives were revolving the workman used his right hand to press the wood towards them and with his left thumb pressed down upon the wood to keep it steady. While so engaged the wood suddenly 'jumped back,' as plaintiff describes it, for some reason which no one undertakes to explain, and his left hand fell in front of the knives, which cut off the thumb and a portion of the hand. The action is brought under the Employers' Liability Act (Laws of 1902, chap. 600), and negligence is predicated upon the defendant's failure to guard the machine as required by section 81 of the Labor Law (Gen. Laws, chap. 32 [[Laws of 1897, chap. 415], as amd. by Laws of 1906, chap. 366), which, so far as it is applicable, reads as follows: 'All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery, of every description, shall be properly guarded.' Evidence was introduced tending to show that similar machines used by other employers were provided with a guard, which was set over the knives in such a way that the hand of a workman could not possibly come into contact with them, and that such guard came as part of the original equipment of the machine. There was also proof that
plaintiff had called the attention of the defendant's general manager to the absence of a guard when the machine in question was put up some eight months before and the manager said he would make one for use thereon. Plaintiff some weeks later again called attention to the absence of the guard, and said he was afraid to work on it, but the general manager said he would make one when he had time and not to mind it, but go ahead.
Objection was made to the receipt in evidence of the notice given under the Employers' Liability Act, but the defendant was clearly advised thereby that the plaintiff's claim was based upon a defect in the condition of the jointer by reason of its not being provided with a guard, and a machine not guarded as required by the Labor Law is a defective machine. ( Proctor v. Rockville Centre Milling & Const., Co., 141 A.D. 900.)
Exception was taken to the charge of the learned trial judge that 'if you find that it was practical for a guard to be placed upon the machine, and if the master omitted to place a guard there, that would be negligence; ' as well as to the refusal to charge, at defendant's request, that 'if the master, in the exercise of reasonable care, could not have foreseen the accident would have occurred in the manner described by the plaintiff, then there was no duty on his part to guard the machine.' To this the court replied: 'No, gentlemen, I refuse to charge that. The statute casts a duty upon him. It is not for him to decide.' So far as the question of the assumption of risk by plaintiff was concerned, that was a question of fact for the jury, and it was properly submitted to them. (Klein v. Garvey, 94 A.D. 183; Neuweiler v. Central Brewing Co., 119 id. 101; Graves v. Stickley Co., 125 id. 132; affd., 195 N.Y. 584.)
The sole question here presented is, do the two exceptions just quoted present reversible errors for our consideration. In Marino v. Lehmaier (173 N.Y. 530), which was a case where a boy thirteen years and three months old had been employed in a factory in direct contravention of the provisions of section 70 of the Labor Law, prohibiting the employment in any factory of a child under the age of fourteen years, four judges agreed that a question of fact was presented for the
determination of the jury, and that in case it should be found that the defendant was negligent and the plaintiff, under the circumstances, was not chargeable with contributory negligence, the defendant was civilly liable; the chief judge concurred in an opinion wherein he held that the violation of the section, although punishable as a misdemeanor, also, in the case of injuries which could not have happened but for its violation, constituted evidence of negligence to be considered by the jury. The two dissenting judges held that the section created no cause of action whatever. In that case the prior decisions were reviewed to demonstrate that a statute prohibiting the doing of an act which is dangerous to the life or health of others might also furnish a jury with the basis of a finding of negligence and a liability for damages resulting from the doing of the prohibited act. But we are referred to no case holding that the failure to perform an act required by the Labor Law constitutes negligence per se, so as to leave no question on that phase of the case for the jury. All the cases hold, by analogy with those where a violation of a municipal ordinance was involved, that the violation of a duty imposed by statute or ordinance, where no right of action is in terms created, is some evidence of negligence and raises at most a question of fact for the jury, but is not necessarily negligent. (Knupfle v. Knickerbocker Ice Co.,84 N.Y. 488; McGrath v. N.Y. C. & H. R. R. R. Co., 63 id. 522; McRickard v. Flint, 114 id. 222; Marino v. Lehmaier, 173 id. 530; Kiernan v. Eidlitz,109 A.D. 726.) In the case at bar the machinery was not entirely unguarded, only an eighth of an inch of the knives projected above the table, the rest being guarded by the table itself. The duty to guard imposed by the statute depended upon two considerations: First. Was it practicable to guard? Second. Could ...