Buckley v. Gutta-Percha & Rubber Manuf'g Co.

• Decision Date: 04 June 1889
• Citation: 113 N.Y. 540,21 N.E. 717
• Parties: BUCKLEY v. GUTTA-PERCHA & RUBBER MANUF'G CO.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 540

21 N.E. 717

BUCKLEY

v.GUTTA-PERCHA & RUBBER MANUF'G CO.¹

Court of Appeals of New York.

June 4, 1889.

Appeal from supreme court, general term, Second department.

Action by Dennis Buckley, Jr., an infant, by Dennis Buckley, his guardian ad litem, against the Gutta-Percha & Rubber Manufacturing Company. A judgment for plaintiff was affirmed by the general term, and defendant appeals.

DANFORTH, J., dissenting.

Jesse Johnson, for appellant.

James Troy, for respondent.

EARL, J.

At the time the plaintiff was injured he was about 12 years old. In July, 1882, he applied to the defendant for employment, and its foreman took him to O'Rorke, who had charge of one of its machines, and told the boy to do whatever O'Rorke directed him. the business of the defendant was to coat cloth with rubber, and for that purpose it had a number of machines, in a large room, operated by steam. The machines were simple, and whatever danger there was in their operation was obvious. It is difficult to describe them without a photograph or model, and we will not attempt to do it. The plaintiff was put at work on Saturday, about noon, and worked that day and Monday, and Tuesday until 11 o'clock, when he was injured. During that time he had seen the machine operated, and had worked about it, and become as familiar with it as a boy of that age could. It became necessary from time to time to remove from the front of the machine a wooden cylinder, through which a square iron rod ran, and carry it to the back of the machine, and take a similar cylinder from that place and put it in front of the machine in place of the one removed. He had seen this cylinder in front of the machine removed several times, and had himself assisted in removing it several times, so that he understood perfectly the process. When that cylinder was wound full of the rubber cloth, it was usually removed by O'Rorke and a young man by the name of Brevort, each taking one end, and carrying it around to the rear, behind the machine, and then an empty cylinder was taken from the rear to the front and there it was put in position; and this had been done several times by the plaintiff and Brevort, each taking one end. On this occasion, after O'Rorke and Brevort had taken the cylinder from the front to the rear, O'Rorke rolled an empty cylinder under the machine to the front, where the plaintiff was standing, and, as the plaintiff testified, told him to put it in place. It weighed about 100 pounds. He succeeded in putting it in place, and drew a band over the end to hold it in the slot into which that end had been dropped, and was endeavoring to turn a screw into the band for the purpose of keeping it in position, and he turned the screw in the wrong direction, and it came out and rolled upon the floor. He picked it up, and came back with it, and put the end of the screw in and started it, and then his foot slipped, and he threw out his hand to save himself from falling, and thrust it into the cogs of some wheels, about nine inches from the end of the cylinder, and his hand was crushed. O'Rorke testified that he did not instruct the plaintiff to pick up the cylinder and put it in. On previous occasions the plaintiff and Brevort, acting together, had put in the cylinder, he taking one end, and Brevort the other. The plaintiff had not been instructed with reference to the machinery, and had not been cautioned regarding any danger.

At the close of the evidence the court ruled that O'Borke was a fellow-servant of the plaintiff; and he also charged the jury that no act of negligence on the part of O'Rorke could be imputed to the defendant, because he was the plaintiff's fellow-workman. This case must therefore be treated on this appeal as if O'Rorke had not told the plaintiff to take up the cylinder and put it into its place, and as if the plaintiff had voluntarily, without any instruction, picked it up, put it in its place, and attempted to fasten it so as to keep it there. It is impossible to perceive from the evidence what the defendant could have done to avoid the accident. The machine was not imminently dangerous. The hands of the plaintiff, in doing anything which he had to do or was doing about the machine, would not come within nine inches of the cogs where he was injured. It was not needful to instruct him that the cogs were dangerous, because that was obvious. He could see as well as anybody that if his finger got into the cogs they would be crushed to pieces. He was not injured because he did not know that the cogs were dangerous, but the injury happened because he slipped and fell, and instinctively threw out his hand to recover himself. His falling was a mere accident, and no amount of instruction or caution from the agents of the defendant would have prevented the accident, and saved him from the injury. His injury did not come from any ignorance of the machines, or of the danger to which he was exposed, but it came solely from the accident.

The judge charged the jury that in order to find a verdict for the plaintiff they ‘must find that the employer was guilty of breach of duty towards this young man; in other words, that he failed to do what a prudent man would have done under the circumstances in the management of this business. Of course, if a full-grown man had been employed at this work, he would know that if he placed his fingers between the revolving cogs he would be very apt to be injured, and you are to say whether this boy would know as much as a man on that subject.’ It is idle to say that this plaintiff did not know as well as a grown man that if he placed his fingers between the revolving cogs he would be injured. The judge further charged: ‘if you shall say...