Standtke v. Swits Condé Co.

Adams, P. J.: The plaintiff in his complaint alleges, among other things, that the defendant negligently furnished to him for the work required •of him a defective, unfit, improper and unsafe machine; and when •called upon to specify in what respect the machine in question was defective and unsafe served a bill of particulars in which it was ■stated that the automatic stock dryer was a wool drying and not a cotton drying machine; that the feeder did not properly distribute the cotton over or upon the apron that conveyed it to the rollers ; that the apron was old and worn out; that its slats and links were broken, in consequence of which it was stretched to an improper length and that it was too loose and would not properly move as it was intended to do and should have done. Upon the trial it was made to appear that the apron had become •somewhat worn by constant use and that by reason thereof it did not operate as freely and properly as it should have done, but the plaintiff was forced to admit that these defects had existed ever since he had entered the defendant’s service; that he knew of their •existence and fully appreciated the consequences which flowed therefrom and that with this knowledge he remained in the defendant’s employ and continued to operate the machine. This being the case, the learned trial justice held, and so instructed the jury, that in so far as the plaintiff’s injury was directly attributable to any defect in the feeder or apron he was not entitled to recover. The ■correctness of the instruction thus given is apparently not questioned by the plaintiff’s counsel, and inasmuch as the plaintiff also testified that the “ operation and working of this machine is just the [504] same whether it was cotton or wool or shoddy that was running through it,” it would seem that no negligence can be predicated of such acts of commission or omission upon the part of the defendant as are specifically referred to in the plaintiff’s bill of particulars. (Powers v. N. Y., L. E. & W. R. R. Co., 98 N. Y. 274; Odell v. N. Y. C. & H. R. R. R. Co., 120 id. 323.) In this emergency recourse was had to an allegation of the complaint which charges that the readjustment of the rollers for the purpose of drying cotton instead of wool increased the hazard to which the plaintiff was subjected in that it enlarged the space between the rollers to such an extent as to permit a person’s hand to go between them which, as it is claimed, was an utter impossibility prior to such readjustment; and that the plaintiff was not informed and did not know of this increased risk until the accident occurred. It was upon this theory that the case was submitted to the jury, and it is the only one upon which the plaintiff’s recovery can be sustained, if at all. In this connection it is proper to observe that the plaintiff testified that for a long time he had been in the habit of spreading the wool upon the apron as it was being conveyed to the rollers, and that he did this with his left hand while with his right he shoved the apron along when for any reason its motion was retarded, and that while thus engaged his fingers would occasionally come into contact with the upper roller, but that he never experienced any difficulty therefrom because the space between the rollers was too small to admit of any object as thick as a person’s fingers, although he concedes that prior to the readjustment of the weight this space was sometimes as much as an eighth of an inch. It is also conceded by the defendant that the change in the weight was designed to increase somewhat the space between the rollers, and that this was done in order to facilitate the-drying of cotton, which seems to require somewhat greater space than wool, but the precise extent of this increase is not made to appear. The plaintiff claims that he felt no pressure from the upper roller until the thick part of his hand came into contact with it, and from this it is argued that the space must have been sufficient to have admitted his fingers without touching them; but it seems that when his arm was withdrawn it was found that the laceration of the fingers extended clear [505] to their tips, or, as the plaintiff describes it, they were “ mashed up like sausage meat.” Upon the other hand, the defendant gave evidence tending to show that, with the rollers adjusted as they were for drying wool, a stuffed glove would pass between them, and that when readjusted, as they were at the time of the accident, it was a physical impossibility for them to separate more than five-sixteenths of an inch without throwing the entire machinery out of gear. It is claimed that, as to this particular feature of the case, there was a clear conflict of evidence which has been passed upon by the jury; but, admitting this to be so, we do not think there is any evidence which will sustain the theory contended for by the plaintiff, that by reason of the readjustment of the rollers a bunch or thick wad of cotton would cause the upper roller to raise or jump half an inch or more, because it is perfectly obvious that this theory is based upon a condition of things which could by no possibility have existed. (Fox v. Le Comte, 2 App. Div. 61.) However, in the view which we take of the case, it is' perhaps unimportant that the exact extent of the increased space should be determined, the more material and paramount question to our mind being whether, assuming as we must that the readjustment of the rollers did enlarge the opening between them, the risk caused thereby to the plaintiff while operating the machine was of such a character as to require that, under the circumstances, he should have been informed of it and warned against it. In short, whether the .defendant, by omitting to call the plaintiff’s attention. to this change in the adjustment of the machine, was guilty of negligence for the consequences of which an action will lie. In determining this question, it is important to ascertain just how this readjustment was accomplished and what result it produced. As has already been stated, the pressure upon the upper roller is regulated by the weight attached to the vertical rod on the side of the machine, and by a law of physics, which must be familiar even to a mere novice, it is obvious that the lower this weight is dropped the greater is the resultant pressure. On the occasion in question the weight was raised to a given point and a wedge or pin inserted to retain it in place. The effect of this was, of course, to relieve somewhat the pressure upon the upper roller and consequently to [506] admit of move space between it and the lower roller. Thus it will be seen that the result sought wTas accomplished- by. a process so exceedingly simple that it must necessarily have been comprehended by any person of ordinary intelligence who witnessed it. The plaintiff says he saw• it done and how.it was done, but he insists that he did not understand why it was done or what effect the lifting of the weight had upon the rollers. We find it somewhat difficult, however, to give unlimited credence to this statement in view' of the plaintiff’s evidence as to his intelligence and competency, for, by his own admission, he was neither an ignorant nor an inexperienced man. Before entering the defendant’s service he had worked for the Standard Oil Company for about seven years, during which time he was engaged in running a heading machine, and for one year and seven months had had charge of this drying machine and had operated it so constantly that he became very familiar with it and knew all about it. In short, to use his own language, he was as conversant with it as anybody could be and knew all about its different parts and how they worked. This being the case, it is absurd to claim that he did not appreciate the effect of raising the weight or realize that, however narrow the space, an object as pliable as the human hand could be drawn between two rollers when placed at any point where they came in close proximity to each other. The contention of the learned counsel for the plaintiff is certainly a most ingenious one ; but his client’s description of the manner in which the accident occurred leads irresistibly to'the conclusion' that it was due, in very large measure at least, to his own negligence, for he says that as he stood by the side of the machine he had his left hand upon the apron so as to keep the cotton from going into the rollers too rapidly, while at the same time he took hold of the edge of the apron with his right hand and pulled it so as to facilitate the movement of the cotton towards the rollers. In other words, with one hand he was pushing the cotton towards the rollers and with the other he was keeping it away from them, and while thus occupied he suddenly discovered that his left hand had gone between the rollers and that it could not be withdrawn in time to prevent the lamentable consequences which ensued. It was claimed upon the trial, and it is still the plaintiff’s con [507] tention, that this method of operating the machine was rendered necessary by reason of the defective condition of the apron, and it is barely possible that, had that appliance been in proper condition, the plaintiff would have had no occasion to manipulate it or the cotton upon it in the way he did ; but this circumstance furnishes no ■excuse for his doing that which he was under no obligation to do and which it was obviously both dangerous and negligent for him to do. (Odell v. N. Y. C. & H. R. R. R. Co., supra.) Manifestly, as was said in a case somewhat similar to this, “ the plaintiff was injured not because he was ignorant or needed instructions, but because he was not cautious, a fault which more frequently proceeds from confidence and familiarity with the use of machinery than from ignorance” (opinion of O’Brien, J., in McCue v. N. S. M. Co., 142 N. Y. 106, 112), and, consequently, we conclude that, within well-settled principles of the law of negligence, the plaintiff failed to establish a cause of action against the defendant. (Hickey v. Taaffe, 105 N. Y. 26, 37; Buckley v. G. P. & R. M. Co., 113 id. 540 ; Graves v. Brewer, 4 App. Div. 327; De Young v. Irving, 5 id. 499.) It follows, therefore, that the learned trial court in denying the defendant’s motion for a nonsuit committed error, which calls for a reversal of the judgment and order appealed from. All concurred. Judgment and order reversed and a new trial granted, with costs to the appellant to abide event.