79 F. 900 (2nd Cir. 1897), E.S. Higgins Carpet Co. v. O'Keefe

• Citation: 79 F. 900
• Party Name: E. S. HIGGINS CARPET CO. v. O'KEEFE.
• Case Date: April 08, 1897
• Court: United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 900

79 F. 900 (2nd Cir. 1897)

E. S. HIGGINS CARPET CO.

v.

O'KEEFE.

United States Court of Appeals, Second Circuit.

April 8, 1897

Knevals & Perry, for plaintiff in error.

Atwater & Cruikshank, for defendant in error.

Before WALLACE and SHIPMAN, Circuit Judges.

WALLACE, Circuit Judge.

This is a writ of error by the defendant in the court below to review a judgment for the plaintiff entered upon the verdict of a jury. The action was brought to recover for personal injuries sustained by the plaintiff, upon the theory that the defendant, his employer, was guilty of negligence in providing an unsafe appliance for the use of the plaintiff.

It appeared upon the trial that the plaintiff, a boy then about 15 years old, entered the service of the defendant, and, after working for several months in the room where a machine run by steam, known as a 'wool picker,' was in constant use, was assigned to the duty of feeding the machine. The machine had cogwheels at the side, in plain view, and they were not protected by any guards or covering. In feeding the machine, the wool was placed upon a band moving over and carried by rollers, the band and rollers being located in a box or trough having sides sufficiently high above the belt to inclose the requisite quantity of wool. The cogwheels were outside this trough, and at the further end, about two feet from the place where the operator stood in feeding the machine. On the second or third day after plaintiff had been assigned to the machine his right hand was caught in the cogwheels, and so severely crushed that amputation became necessary. The evidence for the plaintiff tended to show that he was feeding the machine at the time, and, while his attention was momentarily diverted by a boy who was near by, he got his hand between the cogwheels. The plaintiff testified: 'I told him to go away; and my feed was running out; and I took some wool that went through

Page 901

once, to run it through again; and I was watching this boy what he was doing; and my hand accidentally slipped and went in through the cogwheels. ' The evidence for the defendant tended to show that the plaintiff was cleaning the machine. He was aware that the rules of the defendant prohibited him from cleaning it while it was in motion.

Error is assigned of the refusal of the trial judge to instruct the jury to find a verdict for the defendant. We are...