Cleary v. R.E. Dietz Co.
| Decision Date | 11 December 1917 |
| Citation | 118 N.E. 509,222 N.Y. 126 |
| Parties | CLEARY v. R. E. DIETZ CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Action by George P. Cleary against R. E. Dietz Company. From a judgment of the Appellate Division (164 App. Div. 621,149 N. Y. Supp. 958), reversing a judgment for defendant, defendant appeals. Judgment of the Appellate Division reversed, and judgment of the trial term affirmed.
Leroy B. Williams, of Syracuse, for appellant.
Stewart F. Hancock, of Syracuse, for respondent.
The plaintiff had his fingers cut off while working upon a punch press in the defendant's factory. The machine was a Bliss inclinable punch press No. 21, and was being used to stamp hollow tin tubes about three-quarters of an inch in diameter, parts of lanterns which were being manufactured. The upper die was brought down upon the bedplate by pressing the foot upon a pedal under the press. Unless this pedal was pushed down by the foot, the upper die would not come down.
The plaintiff was hurt on the 6th day of December, 1909, and brought an action against the defendant claimingthat the upper die fell because of a defective spring and without his foot being upon the pedal. His notice of claim under the Employers' Liability Act (Cons. Laws, c. 31, art. 14), dated January 15, 1910, states:
‘The upper die suddenly fell when the operator's foot was not upon the pedal, due to the worn and weakened condition of the spring, and due to the weakened condition of the dog which controlled the operation of the upper die of said machine.’
The action thus brought was third in May, 1910, and voluntarily discontinued.
This, a second action was commenced in the following August, the complaint alleging negligence in that the machine was so adjusted that there was not sufficient room between the pedal and the under side of the machine so that the plaintiff could take his foot off the pedal without tripping it and thereby causing it to be set in motion; and, further, that the defendant was negligent in failing to furnish plaintiff with a stick to do the work instead of requiring him to use his hands.
Thus the plaintiff in his first action claimed that the die dropped without his foot touching the pedal, and in his second action claimed that it dropped because his foot struck the pedal. Notice under the Employers' Liability Act remained the same for both actions.
Upon the trial of this present action the plaintiff admitted on cross-examination that in his testimony upon the first trial he repeatedly stated that at the time the die fell he had not put his foot upon the pedal, and explained this testimony by saying that he meant that he had not voluntarily put his foot upon the pedal. The trial court submitted to the jury the questions of whether or not the defendant was negligent in failing to furnish the plaintiff with a stick to do his work and in instructing him to use his hands; whether the notice under the Employers' Liability Act intentionally misled the defendant; and whether the plaintiff was guilty of contributory negligence and had assumed the risk of the condition of the machine.
The court refused to submit to the jury the question ‘whether or not the defendant was guilty of negligence because of its failure to use ordinary care to furnish a reasonably safe machine, having regard to the nature of the work, because of the shortness of the distance between the trip and the bedplate.’
The jury rendered a verdict for the defendant. The Appellate Division thought it was error not to have submitted the above question to the jury, and has reversed the judgment for the defendant upon this ground.
We agree with the trial court that there was no evidence of negligence arising out of the construction of the punch press. While the plaintiff makes no claim that the punch press was out of repair or in bad condition from user, he does insist that it was improperly constructed or was so adjusted as to make it dangerous for operatives. A word as to this. The upper die, as already stated, was stamping out tin tubes. Pressure upon the pedal caused the die to fall. The pedal was about 17 inches below the bedplate of the machine and about 6 inches from the floor. The foot pressed it down about an inch and a half. The pedal extended out beneath the bedplate a little further than the front of the machine where the operator sat, or else about even with it. The distance between the plaintiff's knee and his foot is given as about 21 inches. As he sat at the machine with his foot upon the pedal, his knee would be 4 inches higher than the bottom of the bedplate of the press. He claims that he tried to get his leg under the press in some sort of fashion, and that as he pressed the pedal down the inch and one-half his knee came back and struck the bedplate, forcing his foot back upon the pedal, causing the punch to fall.
The distance from the edge of the bedplate to the center of the die was between 10 and 12 inches. The plaintiff, therefore, did not have to lean over very far, if at all, to reach his work. After the punch had fallen the first time and returned to its place, it was necessary for the plaintiff, by the use of his fingers, to turn down the edge of the tin being stamped projecting up underneath the die or punch. It was while doing this that the plaintiff got hurt. But the upper die or punch would not come down unless the foot pressed the pedal, and all operators, including the plaintiff, took their foot off the pedal after the die had fallen the first time. If the plaintiff had taken his foot off the pedal, and kept it off, the die would not have come down and he would not have been hurt. He put his fingers under the die before he had fully gotten his foot safely off the pedal. No matter what the distance between the pedal and the bedplate was or how inconvenient it might have been for the plaintiff to work the pedal when his knee projected four inches above the bedplate, the fact remains that he could have taken his foot off the pedal and kept it off before he put his hands under the die to adjust the...
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