Dillon v. Nat'l Coal Tar Co.

• Decision Date: 11 April 1905
• Citation: 73 N.E. 978,181 N.Y. 215
• Parties: DILLON v. NATIONAL COAL TAR CO.
• Court: New York Court of Appeals Court of Appeals

181 N.Y. 215

73 N.E. 978

DILLON

v.NATIONAL COAL TAR CO.

Court of Appeals of New York.

April 11, 1905.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Thomas F. Dillon against the National Coal Tar Company. From a judgment of the Appellate Division (84 N. Y. Supp. 1123,88 App. Div. 614) affirming a judgment for plaintiff entered on a verdict, defendant appeals. Reversed.

The action is based upon alleged negligence resulting in personal injuries. On the 15th of January, 1901, the plaintiff, a steam fitter, 48 years of age, and employed by the defendant, sustained the injuries complained of. He had been directed by the foreman of the defendant to take down a line of pipe which ran along and near the ceiling of one of the rooms in the defendant's factory. While engaged in this work a portion of his clothing was caught on a revolving shaft, in consequence of which he was whirled around, thrown down, and severely injured. The case was submitted to the jury, and the plaintiff recovered a verdict for $2,250. On appeal the judgment entered upon the verdict was affirmed by the Appellate Division, one of the justices dissenting.

The room in which the plaintiff was at work at the time of the accident was about 17 or 18 feet high. The shaft which caused his injuries ran along the ceiling of the room, and about 2 feet therefrom. Above the shaft, and at a distance variously estimated at from 15 inches to 3 feet, was the pipe line which plaintiff was engaged to take down. There was a groove, called a ‘keyway,’ running along the entire length of the shaft, about three-eights of an inch deep and seven-eights wide, and the shaft was revolving at the rate of about 150 revolutions a minute. The plaintiff, with a helper, had been at work some hours taking down the pipe. At the place where the accident happened, they had placed a ladder against the pipe, and when at work on the pipe the plaintiff was between it and the shaft; a part of his body being above and a part below the shaft, with his back towards it. While in this position, and dressed in overalls and a jumper or jacket closely buttoned around him, he started to descend the ladder, when a portion of the clothing on his back was caught by the shaft, with the result above stated. The plaintiff testified, as did the helper, that it was necessary for him to get into the position described in order to take down the pipe. On the other hand, the foreman of the defendant testified that it was not necessary, but that he could have reached the pipe without getting into proximity with the shaft. The exact situation of the pipe with respect to the surroundings does not clearly appear in the record. The plaintiff received no specific directions as to the manner of doing the work, the details being left to his judgment. The plaintiff said to the foreman of the defendant, who was a mechanical engineer having general charge of the work, that ‘we could do this work more convenient and handier if the machinery was stopped.’ The foreman replied: ‘Go right away and take the pipe down. I have got to get it down out of here.’

The plaintiff was an experienced steam fitter, having pursued that occupation for about 30 years. He had been in the employ of the defendant for a year or more prior to the accident. He testified that the ‘business of a steam fitter is to look after the pipes, steam pipes, and connections about engines that operate machinery in factories,’ etc. His work has been in machine shops largely. He further testified that when at work on the pipe he was careful to avoid coming in contact with the shaft; that he never knew of any danger from such contact with a rapidly revolving shaft, nor that it ‘was likely to catch him,’ but that it might catch a loose garment. Some of his witnesses testified that it was common knowledge that there was danger in allowing clothing to come into contact with a rapidly revolving shaft. He did not know of the existence of the keyway, and when the shaft was revolving rapidly it could not be seen. The evidence tends to show that a smooth revolving shaft would have some tendency to catch hold of and wind around it loose clothing that came in contact with it, while a shaft with a keyway in it, like the one in question, would be much more likely to have that effect, and would be more dangerous. Keyways are used for the purpose of attaching wheels or pulleys to shafting, and the evidence discloses that the places not in actual use are usually filled in with babbitt metal, so as to make a smooth surface.

O'Brien, Bartlett, and Vann, JJ., dissenting.Frank Verner Johnson and E. Clyde Sherwood, for appellant.

L. R. Oeland, for respondent.

WERNER, J. (after stating the facts).

As the shaft which caused plaintiff's injuries was elevated 14 or 15 feet above the floor of the defendant's factory, and could be reached only by the use of a ladder, the defendant cannot be charged with negligence, under the factory act, in failing to properly guard it. Glens Falls P. C. Co. v. Travelers' Ins. Co., 162 N. Y. 399, 56 N. E. 897. The only ground upon which the defendant can be held liable, if at all, is that it failed in its duty to properly instruct the plaintiff before he was directed to take down the pipe upon which he was at work when injured. If the danger to be apprehended by coming in contact with the shaft was as open, obvious, and apparent to the plaintiff as it was to the defendant, the latter was under no duty to instruct the former in...