Makin v. Pettebone Cataract Paper Co.

Kruse, J. : '' I think the judgment appealed from should be affirmed. While it is true that this boy, the plaintiff, had worked around the mill for some time before the accident, he had never before done the work which he was attempting to do when he was hurt. It was dangerous and required' close attention, quickness and skill. He received no instructions or- warning of its dangers, some of which were hidden and unknown to.him, and the very first attempt he made to dispose of the waste paper his hand was suddenly drawn with the paper toward and between the fast revolving rollers and crushed. The work he was doing was called backtending. There were two sets of rollers. The two sets were about two and a half feet apart and the plaintiff was required to work in this space. . Hp to about a month- prior to the accident there had been about five and a half feet of space between the two sets of ¿rollers, but additional dry rollers had been added and the space narrowed, thus increasing the danger. Until this space was narrowed the waste or spoiled paper had not been drawn toward and caught of itself between the two lower calenders as will be presently described. The paper in process of manufacture passed over and between one set of rollers known as the driers, and then across to the other set knovvn as the calenders, from which it wound on a reel. " At times the paper would break in passing from the driers to the calenders and then wind around the last drying roller. The backtender was then required to go between the two sets of rollers and quickly cut the [728] paper from the dry roller where it was accumulating, whereupon the paper, instead of passing up over the calenders, would-fall upon the floor between the two sets of rollers. This waste or spoiled paper was then put between the two lower calender rollers and carried away, dropping on the other side of the calenders. After the slack had been thus taken up the paper was snapped off, and the end nearest the drier taken over to the calenders and placed between the two upper calender rollers, and the process of making and finishing the paper was resumed. When the paper broke it required prompt, quick and accurate work, for the machinery was kept in motion, the paper accumulating at about 250 feet a minute_and falling upon the floor. It. was necessary to get 'rid of this paper and slack expeditiously to prevent a's little of the paper being spoiled as was possible, and it was this work which the plaintiff was doing, or attempting to-do, when he was injured. When the machinery was in motion and the rollers .revolving there was a tendency to draw the waste paper toward the revolving rollers. .'What caused this dangerous tendency does not appear very clearly, and perhaps it is not very important;'that it existed is scarcely disputed. The plaintiff was not informed of this danger, and did’ not know of it until his hand was drawn in between the rollers. I think it cannot be. said, as a matter of law, that this danger was obvious nnd the risk assumed by the plaintiff. While he must have known that if his hand was caught between the rollers it would be injured, yet the jury were warranted in finding that this dangerous tendency to draw the material toward the roller was unknown to the plaintiff, and that reasonable care for the safety of this boy required the defendant to warn him of its danger. In this respect the case differs from those cited and relied upon by my brother, Hash, and, as I 'think, comes within the class of cases like Wyman v. Orr (47 App. Div. 136) and Welle v. Celluloid Co. (175 N. Y. 401). As I view it, the case was one for the jury. The questions were submitted to them with clearness and accuracy by the learned trial judge, and they having found upon these questions adversely to the defendant, their verdict ought not to be disturbed. The other [729] points urged upon our attention by the defendant’s counsel have not been overlooked, but none of them, I think, is such as to warrant granting a new trial. The judgment and order appealed from should be affirmed. All concurred, except Nash, J., who dissented in an opinion, and Williams, J., who dissented on the ground that the finding of the jury that the risk was not assumed is contrary to the evidence.