O'Connor v. Webber

• Decision Date: 09 December 1924
• Citation: 239 N.Y. 191,146 N.E. 200
• Parties: O'CONNOR v. WEBBER et al.
• Court: New York Court of Appeals Court of Appeals

239 N.Y. 191

146 N.E. 200

O'CONNOR

v.WEBBER et al.

Court of Appeals of New York.

Dec. 9, 1924.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by William D. O'Connor against Richard Webber, Jr., and others, copartners under the firm name of Richard Webber. From a judgment of the Appellate Division (205 N. Y. S. 941) affirming a judgment in favor of plaintiff, defendants appeal. Reversed, and complaint dismissed.

Pound, Crane, and Andrews, JJ., dissenting in part.

E. C. Sherwood, of New York City, for appellants.

Sydney A. Syme, of Mt. Vernon, for respondent.

LEHMAN, J.

The defendants in June, 1913, maintained a meat market in Mt. Vernon. They employed the plaintiff, a boy of 14, in their business. The only machine in chopping machine. The plaintiff while engaged in chopping meat in this machine sustained serious injuries. A recovery for the consequent damages was reversed by this court in 1916. O'Connor v. Webber, 219 N. Y. 439, 114 N. E. 799. After various vicissitudes in the courts below the plaintiff has recovered, and seeks to sustain a second judgment for his injuries.

The evidence as to the manner in which the accident occurred is concededly substantially the same as at the earlier trial. It has been succinctly summarized as follows:

“The meat-chopping machine is run by electricity. At the top there is a hopper or funnel, four inches high, its diameter about four or five inches at the top and two and a half or three inches at the bottom. Beneath it is a revolving worm or screw, covered on all sides and open only at the top of its junction with the hopper. The meat is fed into the hopper and pushed down with a stick. The stick, touching the screw, flew out of the plaintiff's hand, and with the shock his hand slipped into the machine and the revolving screw cut off the fingers.

[1] The undisputed evidence at both trials is that the chopping machine was of standard make and in common use. Apparently a boy operating the machine could be injured only if his hands came in contact with the worm at the bottom of the funnel. The boy here was given a stick to push down the meat in the funnel, so that his hands should not come in contact with this worm. He understood as well as an adult that to touch the worm would be dangerous, and in fact the accident occurred while he was using the stick and through accidental contact with the screw. Quite evidently, therefore, the defendants can be held liable for the plaintiff's injury only if by the exercise of reasonable prescience they might have foreseen that the plaintiff's hand might come in contact with the worm, even though the plaintiff used the stick which they provided.

The danger of injury, if the operator of the machine placed his hand against the worm or screw was obvious; but this court pointed out upon the earlier appeal that there was no reason to believe that any person would touch the screw, for “against casual contact by the thoughtless it was protected by the funnel,‘ and the defendants were not required to employ experts to invent a new machine with a device which might guard against “remote and doubtful dangers.‘ They complied with their full duty when they provided a machine of standard make and in common use. Upon the present appeal the record shows that machines containing such a device had previously been invented, and could be purchased on the market, and it is urged that this new evidence shows that others foresaw and guarded against the danger, and permits the inference that the defendants, by the exercise of reasonable prudence, could likewise have foreseen and guarded against it. In our opinion the evidence falls far short of permitting such an inference. The machines equipped with such a device were not in common use. Machines without such device were the only ones in common use and of standard make. In fact the same condition is true to-day. This possibility that a man might thrust his hand against the worm or screw, and that injury would result may have led inventors to seek a device that would remove the possibility, but the obligation of an employer to purchase such a device, even if he knew of its existence, depends upon whether the danger was such that in the exercise of reasonable care it would be foreseen and guarded against, or whether it was “remote and doubtful.‘

In the present case the defendant fails to allow an inference that the defendants either knew or, in the exercise of proper care, should have learned of the existence of these machines not in common use, and the danger of contact with the by any person using a stick to push down the meat in the hopper still remains, in spite of the new evidence, remote and doubtful. Upon this appeal, as upon the earlier appeal, we find that the...