Scott v. . International Paper Co.

Chase, J. The defendant is a domestic corporation engaged in the manufacture of paper. In the process of making paper a machine is used, consisting in large part of dryer rollers filled with steam, over and between which the paper pulp is carried and dried until it passes in a continuous sheet over a roll about eight feet above the floor to the upper one of eight calender rolls, together known as the calender stack. The calender stack consists of eight highly polished smooth surface steel rolls about eleven feet long; the lowest of these rolls is about two feet in diameter, and the others are placed, each resting horizontally on top of the other, and each is a little less in diameter than the one below it. The top roll is about one foot in diameter and ten feet from the floor. Power is applied to the lowest roll and each of the others are turned by friction, by reason of its weight resting upon the roll below it. The end of the machine, including the dryer rolls, is from four and one-half to six feet from the calender rolls, and the frames of the two machines are about three feet apart. Between the machines, therefore, is a space about four and one-half to six feet wide, eleven feet long and eight to ten feet high, and having an entrance about three feet wide. When the paper passes from the last roll of the drying *51 machine it is taken over the top calender roll and then passes alternately to the right and left downward between the calender rolls, being thus ironed and polished, and from the last or lowest calender roll it runs to and upon a reel. The paper passes through said rolls at a speed of about eight feet per second. Occasionally it breaks in passing from one machine to the other, and if so, it accumulates very rapidly in the space between such machines. The plaintiff had been employed for about three weeks as a “broke hustler.” His duty as such was to gather the accumulated paper piling up between the two machines and pull it out from between them, while another employee reinserted the broken paper between the calender rolls. While removing the paper after a break, June 26, 1906, the fingers of his right hand were caught in the “pinch ” between the two lower rolls, and the injury was caused for which this action is brought. The danger in the situation appears from the above statement, except that it is claimed by the plaintiff that there is some static electricity generated by the friction of the rolls and the paper, which in a degree attracts the loose ends of paper when near said rolls, and the plaintiff asserts that he was not aware of the existence of such attraction. The trial court dismissed the plaintiff’s complaint at the close of his evidence, and from the judgment dismissing the complaint an appeal was taken to the Appellate Division, where it was affirmed by a divided court. We concur in the conclusions reached by such courts, except as to the question arising from a section of the Labor Law, which is as follows: “ * * * All vats, pans, saws, planers, cogs, gearing, belting, shafting, setscrews and machinery, of every description, shall be properly guarded. * * (Labor Law, section 81; Cons. Laws, ch. 31.) Where it is practicable to guard a machine, and danger from its remaining unguarded should be reasonably antici *52 pated, the provisions of the statute quoted are mandatory. A machine that is maintained wholly without guards is presumptively contrary to the statute. The burden of showing that it is impracticable to guard a machine, or that its location removes it from danger to employees, is upon the person or corporation maintaining it. In this case it appears that a plank or other substance fastened vertically opposite and near the “pinch” of said rollers would to some extent have guarded against the danger to which the plaintiff was subjected. That it would have been possible for the plaintiff to have put his - fingers behind such a guard and into the “ pinch ” is not necessarily a reason why the machine should not have been guarded so far as practicable. Some evidence also appears in the record tending to show that it is practicable so to guard a machine because planks and other substances have been used in substantially the place where required for guards by many paper manufacturers using similar calender rolls. Such planks and tubes were used for other purposes, but if it was practicable to use them for othei purposes it is some evidence that it was practicable to use them for guards. Wholly apart from any common-law liability, the statutory requirement is such that the court should have presented to the jury the question whethei the statute had been complied with. The judgment should be reversed and a new trial granted, costs to abide the event.