McEwen v. Borden's Condensed Milk Co.

Hirschberg, J.: The action is to recover compensation for damages received from injuries charged to the defendant’s negligence. It is brought under the Employers’ Liability Act (Laws of 1902, chap. 600; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14), and the negligence charged is violation [186] of the requirements of section 81 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), requiring all cogs, gearing, set screws and machinery of every' description to be properly guarded. " At the time of the accident, on August 15, 1909, the plaintiff, nearly of age, had been in the defendant’s employment about a month at a factory in Orange county, and was then engaged in washing bottles on a machine constructed and installed for that purpose. In the operation of the machine the bottles to be washed are put on brushes on one side of the machine and are carried around and taken off on the other side. There are gears and cogs revolving at the rate of ninety revolutions a minute and which, the evidence ends to show, were unguarded. - While the plaintiff was engaged in the performance of his duties in going from one side of the machine- to the other, he stepped on a bottle which he did not see and which had not been placed on the floor by him, and slipping, because of that step, his right hand fell into the unguarded gears and his thumb and a portion of the index finger were taken off. In addition to his own evidence and that of an eye-witness as to the accident, he produced two mechanics who testified that it was practicable to guard the gears and cogs in a manner which would have, avoided any injury without interfering with ..the operation or efficiency of the machine. The question presented on the appeal is whether the undisputed facts inquired a submission of the case to the jury. I think the uncovered gears were the proximate cause of the plaintiff’s injuries, if not the proximate cause of the accident, and that under the authorities there should have been a submission to the jury. In Finkle v. Bolton Landing Lumber Co. (148 App. Div. 500) the plaintiff was employed to operate a circular saw, and, tripping over nails in the floor, he thrust his hand against the uncovered saw. It was held that the tripping and the lack of a proper guard were concurring causes of the accident, and that it was error for the court to take from the jury the question of the defendant’s negligence in failing to guard' the saw on the theory that it was not the proximate cause of the accident. In Martin v. Walker & Williams Mfg. Co. (198 N. Y. [187] 324) it was held, that where an employee slipped on the floor by reason of oil which had dripped thereon, and the slipping caused him to fall forward and to thrust his hand into rumiing machinery, the fact that it was practicable to cover the machinery in such a way as to prevent the injury sustained justified a recovery. . In the case at bar the machine was guarded on one side and not upon the other, and the evidence referred to tends to establish that it was entirely practicable to guard it on both sides. Had it been so- guarded the injury suffered by the plaintiff would not have been sustained. In Scott v. International Paper Co. (204 N. T. 49) the Court of Appeals decided that where it is practicable to guard a machine, and danger from its remaining unguarded should be reasonably anticipated, the provisions of the Labor Law are mandatory, and that the burden of showing that it is impracticable to guard it or that its location removes it from danger to employees, is upon the person or corporation maintaining the machine. (See, also, Hartman v. Berlin & Jones Envelope Co., 71 Misc. Rep. 30; affd., 146 App. Div. 926; Glens Falls P. C. Co. v. Travelers’ Ins. Co., 162 N. Y. 399; Kirwan v. American Lithographic Co., 197 id. 413.) Assuming that the plaintiff had full knowledge of the danger involved in the operation of the machine in question in the condition in which it was, that fact would not preclude a recovery in view of the recent decision of the Court of Appeals in the case of Fitzwater v. Warren (206 N. Y. 355). In that case it would seem to have been held that public policy precludes an employee from assuming any risk which has been created by the violation of a statute on the part of his employer and even from waiving the liability of the latter for injuries occasioned thereby. At all events, the question of the assumption of the risk must be regarded as one for the determination of the jury. Many cases are cited by the learned counsel for the respond - ent, but I think the facts in each are easily distinguishable from those in the one at bar. As was said by the court in Glens Falls P. C. Co. v. Travelers’ Ins. Co. (supra, 404): “The necessity for the guard, and the character and description of the guard must, of necessity, depend upon the situation, nature [188] and dangerous character of the machinery, and in each case becomes a question of fact.” The plaintiff is entitled on this .review, as in a nonsuit, to the most favorable construction which the' jury might properly have placed upon the evidence. (Simpson v. Interborough Rapid Transit Co., 141 App. Div. 148.) The exceptions of the plaintiff should be sustained and a new trial granted, costs to abide the event. Thomas, Woodward and Rich, JJ., concurred; Burr, J., read for the defendant.