Whitney v. Queen City Ice Co.

ADAMS, P. J. This action is brought by the plaintiff to recover damages for the personal injuries sustained by him under the circumstances above detailed; his contention being that the accident which caused such injuries was attributable to the negligence of the defendant in permitting the clutch which operated and controlled the movement of the conveyor to become so worn and defective as to make it difficult, if not impossible, for the person in charge thereof, to stop the conveyor in time to avoid the accident. That this clutch was broken, and out of order, is a fact about which there was no controversy; and it was likewise undisputed that the defendant’s president and manager, with full knowledge of the situation, directed that the clutch should be used in its broken condition, and to that end improvised a temporary appliance for controlling the operation of the defective machine, and instructed the person in charge of it how to use the same. The plaintiff testified that he was unaware of the defective condition of the clutch, and there was evidence to support the contention that, but for its defective condition, the accident would not have occurred. It follows, therefore, that the defendant’s negligence was fairly established. We do not understand that this proposition is seriously controverted, but it is insisted that, even conceding the defendant’s negligence, the plaintiff ought not to be permitted to retain the verdict which was rendered in his favor, because of his own contributory negligence; and at first blush there would seem to be much force in this contention, for it is not denied that the plaintiff stepped onto this conveyor while it was in motion, and with full knowledge of the consequences which were liable to ensue in case his leg became caught between the slats. But, upon the other hand, it was made to appear by evidence which was virtually undisputed that the plaintiff’s duties required that he should frequently go from one side of the conveyor to the other, and that to accomplish such change of position there were but three ways available, viz.: He might have gone to the further end of the building, and passed around the conveyor; but this would have involved an expenditure of time and energy which the defendant’s president frankly declared would not have been tolerated. He might have crawled under the conveyor, and taken the chance of his head coming in [537] contact with the endless chain as it moved along on its return, provided the space between the conveyor and the floor was not filled with refuse ice, as it generally was after 10 or 11 o’clock in the forenoon; or he might have stepped across the slowly-moving conveyor, as he attempted to do, and as lie had frequently done before with perfect safety. Widely differing estimates were furnished by the various witnesses as to the rate of speed at which the conveyor was moving at the time of the accident; but from the conflicting evidence the jury would have been justified in assuming that its speed was not more rapid than that at which a man would ordinarily walk, and the plaintiff testified that, measuring its movement with las eye, he was careful to step immediately behind one of the lags, so as to obtain all the space and time available. The conveyor always moved at about the same rate of speed, and the evidence tended to show that it was the universal custom for the workmen in the ice house to cross from one side of the house to the other by stepping upon the conveyor while it was in motion; that this was done with the knowledge of the defendant’s president and manager; that he had been seen to do it himself, and on one or more occasions had found fault with certain of his employes because they hesitated to do the same thing. It was also made to appear that there was a bell in the power room, to which a cord was attached; that a man was stationed near the conveyor, whose duty it was to ring this bell whenever there was any occasion for stopping the machinery; and that, if the clutch had been in order, the engineer, upon being warned by the ringing of the bell, could have stopped the conveyor almost instantaneously. It also appears that the moment the plaintiff caught his foot between the slats the bell was rung, and an effort made to shut off the power, but that this effort proved futile, in consequence, as it is claimed, of the defective condition of the clutch. These circumstances have a tendency, as we think, to very materially weaken the force of the defendant’s contention, and to convert the question of the plaintiff’s contributory negligence into one of fact for the jury. The general rule which must govern in cases of this character is, of course, well understood; and it is not difficult to cite authorities without number which seem to support the defendant’s contention that the question we are now considering is one of law, and not of fact; but we think it will be found upon examination that the application of this rule is invariably dependent upon the peculiar circumstances of each individual case. The correctness of this assertion finds illustration in one of the cases to which our attention has been directed, viz. Bajus v. Railroad Co., 103 N. Y. 312, 8 N. E. 529. There the plaintiff was a brakeman, and while attempting to uncouple some cars he caught his foot under a brake beam, and, after being dragged for a long distance, one of his legs was crushed under the wheel of a car. It appeared that the shifting engine which was attached to the cars was out of order, and there was some evidence tending to show that, if it had been in a proper state of repair, the backward motion of the cars might have been arrested in time to have avoided the accident; but it was held that this fact, in view of the circumstances of the case, did not establish actionable negligence [538] upon the part of the plaintiff. As thus stated, there certainly does appear to be some analogy between the facts of this case and those of the one under consideration; but when we come to fully understand the reason upon which the court rested its conclusion we find that there is a radical difference between the two cases, for in discussing the facts of the case cited it was said by Earl, J., that: “This was not a dangerous engine, and it did not cause the injury. * * * It was an accident which the defendant had no reason to anticipate, and hence it was not bound to have an engine there adequate to avert its consequences. It cannot be charged with negligence in not foreseeing that such an accident might occur, and that then the engine would lack power to stop suddenly enough to ward off injury.” In the present case it clearly appears that the defendant’s president and manager well knew that the defective machinery was dangerous, and he also knew that by reason of its dangerous- and defective condition it was exceedingly difficult of management and control. The matter was talked over between him and Orcutt, the engineer, a few hours prior to the accident; and yet with this knowledge he instructed Orcutt to use the improvised bar, and get along as best he could until a new clutch could be adjusted. Moreover, it appears that the defendant had constant reason to anticipate some accident to or disarrangement of the conveyor, for two men were stationed in close proximity to the bell cord, whose duty it was to signal the engineer to stop the machinery the instant any difficulty arose; and, if this precaution was necessary when the clutch was in working order, there was all the more reason to anticipate trouble when its power and effectiveness were impaired. The case, after a careful trial, was submitted to the jury in a charge which was exceptionally clear and impartial, and, while conscious that it presses the border line quite closely, we are not persuaded that the verdict of the jury ought to be disturbed. Judgment and order affirmed, with costs. All concur, except McLENNAN, j., who dissents in opinion.