Pyne v. Cazenovia Canning Co.

• Decision Date: 27 February 1917
• Citation: 115 N.E. 438,220 N.Y. 126
• Parties: PYNE v. CAZENOVIA CANNING CO.
• Court: New York Court of Appeals Court of Appeals

220 N.Y. 126

115 N.E. 438

PYNE

v.CAZENOVIA CANNING CO.

Court of Appeals of New York.

Feb. 27, 1917.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Frederick Pyne, an infant, by Alice Pyne Mather, his guardian ad litem, against the Cazenovia Canning Company. From a judgment of the Appellate Division (165 App. Div. 943,149 N. Y. Supp. 1107) affirming judgment for plaintiff, defendant appeals. Judgment reversed, and new trial granted.

William H. Harding, of Syracuse, for appellant.

Daniel J. Seubert, of Syracuse, for respondent.

COLLIN, J.

[1] The action is servant against master, to recover damages for the alleged negligence of the defendant in permitting a belt to so hang from a revolving shaft as to cause personal injuries to the plaintiff. The Appellate Division by a decision not unanimous affirmed the judgment consequent upon the verdict of the jury in favor of the plaintiff. If there was no evidence that tended to support the verdict, the submission of the case to the jury was error. Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86, 102 N. E. 540, L. R. A. 1915B, 1127.

The facts determinative of the question presented to us, as the jury might have found them, are: The plaintiff at the time of the accident, July 26, 1913, was 17 years of age. He was, and had been for nearly a month, an employe of the defendant in its canning factory. In the afternoon of that day he went from the part of the factory where his work was to a part then not used, but through which ran the shaft which furnished the power to the machines in the used part. The shaft was two and three-sixteenths inches in diameter and was six feet and nine inches above the floor. A belt which when in use extended from a pulley fixed to the shaft to a pulley fixed to a machine upon the floor was hanging from the shaft and was tied at its lower end into a knot which was about three feet from the floor. It was of the ordinary type, was two inches wide and three-sixteenths of an inch thick. It then was, and through the months last prior had been, in disuse. The shaft was revolving at the rate of between 170 and 250 revolutions a minute, causing the knot in the belt to rise and fall through the space of three or four inches. The plaintiff stood five minutes or more a foot and six inches from the belt talking with two young men, who stood right in front of him. The belt crept upon the shaft toward him and swayed slightly. His left arm, slightly bent at the elbow, and back were towards the belt. He testified:

‘I was standing there talking with Paul Brown [and Leslie Jones], and I felt a pressure on my left elbow, and it tightened, and then I felt myself begin to raise, and I reached for the belt, and I went still higher and grabbed with my hand out for the pulley, and it was twisted right around the belt; that is as near as I can remember, as near as I can figure out. * * * I was bound right around the shaft by the belt.’

He further testified that the pressure was right at the corner of the elbow, was sudden, lifting him from the floor a little ways; then he grabbed the belt with his left hand and went still higher.

[2] The expert witnesses of the parties were in contradiction as to the possibility of the happening of the accident as described by the testimony of the plaintiff and his witnesses. The trial justice, after charging the jury that the provision of Labor Law (Consol. Laws, c. 31) § 81, required all belting within seven feet of the floors to be ‘properly guarded,’ said:

‘It is only against such accidents that may reasonably be expected to occur that he [the master] is bound to guard even the machinery enumerated in the statute. ‘Properly guarded’ has been construed [by the courts] to mean guarding against an accident which may be reasonably apprehended or liable to occur.'

This was correct. Wynkoop v. Ludlow Valve Mfg. Co., 196 N. Y. 324,89 N. E. 829,30 L. R. A. (N. S.) 36.

[3] The evidence, the briefs, and the arguments of counsel do not present an intelligible explanation or theory concerning the cause of the accident or the manner in which it was effected. The counsel for the respondent in his brief and in his argument deems it necessary to enlarge the evidence by facts which the record does not contain. It may be, he states, in effect, that as the plaintiff felt a pressure and tightening on his elbow he grabbed both sides...