Fox v. Le Comte

Cullen, J. : This action is servant against master to recover damages for personal injuries. The plaintiff, a boy of sixteen years, Was employed to- work a power press, which is set in motion by pressure [62] of the foot upon a treadle. When the pressure is removed' the punch should come to rest. After working some two weeks in the factory, part of his thumb was cut off by the plunger or punch." The plaintiff’s claim was that the press was out of order and the plunger moved without pressure being applied to the treadle. The defendant’s claim was that the press-was nowise defective, but that the plaintiff carelessly let his foot fall on the treadle. Testimony was given to support the claims of the respective parties, both as to the facts of the accident" and also of an expert nature as to the operation of such, machines. At the close of the case the defendant moved to dismiss the complaint, both on the contributory negligence of the plaintiff and a failure to establish negligence on the part of the defendant. The exception "to the refusal of the court to grant this motion, and the claim of the defendant that the verdict was against the evidence, present the only questions necessary to discuss on this appeal. It is charged that the plaintiff was negligent in two respects: The first is that he placed his thumb under the plunger, while lie , was instructed to take the disk between his finger and thumb when placing it on the die, by which only the soft parts of the fingers ■would be exposed. Plaintiff, denies this instruction, and claims, that his thumb was necessarily. exposed. The jury saw the press operated at the trial and could determine whether its proper operation placed the thumb. of the plaintiff in danger. The second ■claim is that the plaintiff knew of the defective character of the ' press, and with that knowledge continued to work on it. We think that this was not conclusively established, but was a question for the jury to determine. Doubtless the plaintiff knew the press had been defective, but, according’ to .his testimony on his complaint,, the press was repaired by the machinist,, whose duty it was to care for and repair the machines. Plaintiff was then told to go to work, and worked on the press for about an ■ hour before the accident occured. By his statement, during all this period the press continued to “ click.” To charge him "with negligence • it was not only necessary to show that he knew of the “ clicking,” but also that he knew that the “ clicking ” imported that the machine was dangerous. Hot only does plaintiff swear that he did not know this fact, but it was a question most seriously litigated at the trial, the [63] defendant’s witnesses swearing that the “ clicking ” of the press did not indicate that it was defective or out of order. As to the defendant’s negligence, it is undisputed that if the plunger moved without pressure on the treadle the press was defective. It was alleged that.though this was the case the defendant had no knowledge of the fact. It was not necessary that the defendant should personally have " such knowledge. The repair of the press was not a mere detail of the work, as in Webber v. Piper (109 N. Y. 496), but a part of the master’s duty to use reasonable care to provide safe appliances for his servants. . This duty was committed to the machinist, but being the master’s duty the machinist in the discharge of it was not a co-servant, but represented the master. For his neglect the master was liable. (Fuller v. Jewett, 80 N. Y. 45; Bushby v. N. Y., L. E. & W. R. R. Co., 107 id. 374.) The present case cannot be distinguished from those of Hayes v. Bush & Denslow Mfg. Co. (41 Hun, 407); Van Siekel v. Ilsley (75 id. 537). The court, hearing a constant repetition of the tale in cases of accidents occurring in the use of these presses, that the press clicked ” and then the punch came down without action by the operator, may be suspicious of the truth of some of these narratives. The question, however, is one of fact for the jury, and the court is not justified in interfering unless the verdict is manifestly against the evidence. Of course, the court would allow no verdict to stand that was based on the negation of a well-known and accepted scientific fact of common knowledge, or on the existence of a physical impossibility. But the operation of these presses is not-a matter of common knowledge, and if the movement of the plunger without pressure on the treadle is an impossibility it was incumbent upon the defendant to establish it. The defendant did not satisfy the jury of the fact, nor had he satisfied us. ' The judgment and order, appealed from should be affirmed, with costs. All concurred, except Hatch and Pbatt, JJ., dissenting.