Dingley v. Star Knitting Co.

• Decision Date: 01 October 1892
• Parties: DINGLEY v. STAR KNITTING CO.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 552

32 N.E. 35

DINGLEY

v.STAR KNITTING CO.

Court of Appeals of New York,

Second Division.

Oct. 1, 1892.

Appeal from supreme court, general term, third department.

Action for personal injury by Benjamin F. Dingley against the Star Knitting Company. Ajudgment of nonsuit was affirmed at general term, (12 N. Y. Supp. 31,) and plaintiff appeals. Affirmed.

Bradley and Vann, JJ., dissenting. 12 N. Y. Supp. 31 , affirmed.

J. F. Crawford, for appellant.

E. Countryman, for respondent.

PARKER, J.

The action was to recover for the loss of service to plaintiff of his minor son, occasioned by an injury to him which plaintiff alleges to have been due to the negligence of the defendant. At the time of the accident, the defendant operated a knitting mill in which plaintiff's son, then about 15 years of age, was employed. He had charge of the running of the seven second breakers, sometimes called ‘cards,’ operated by water power. A line of shafting, extending along one side of the building, was connected with the card by a belt, which ran on a tight pulley when it was desired to keep the card in motion, and it was transferred to a loose pulley when the purpose was to stop the card. The pulleys were located side by side, each being about five inches wide. The machine is stopped by pressing the hand against the driving belt, and running it off from the tight pulley onto the loose one. The machine is started by pressing the belt back onto the tight pulley. It was a part of the duty of the injured boy to clean out the waste which accumulated undereach machine, and as we must adopt the view of the evidence most favorable to the plaintiff, it must be assumed that in the performance of this duty he was required by the defendant to reach under the machine with his hands. On the 1st of October, 1884, while he was operating the machine, he changed, as he claims, the belt from the tight to the loose pulley, and commenced with his hands to remove the waste from the machinery, as was his custom, and in accordance with his duty as defendant's employe, and while in that position the machine started, and in the revolutions of the cylinder his hand was caught and seriously injured. The injured boy, prior to the accident, had considerable experience in the operation of machines of this character. He had worked in other mills, in which he had operated similar machines, and after going into defendant's employment he had had charge of the machines in question for several weeks. There is no basis, therefore, on which to predicate negligence of the defendant in failing to inform Dingley of the dangers incident to the operation of the machines, nor is such claim made.

The sole question, then, is whether the evidence adduced would support a finding of fact that the defendant failed to perform its duty towards Dingley in selecting suitable machinery for his use, and keeping it in repair. The machine in question was such as was in ordinary use; it was operated in the usual way. No attempt was made to point out the specific defect which the plaintiff claims the defendant negligently permitted to exist. It was proven that the machine was not fastened to the floor. But neither were any of the other machines in the building, nor is there any proof that such machines are ordinarily and commonly fastened to the floor. And in this connection it should be said that the evidence does not tend to show that this machine was situated with reference to the shafting differently than such machines usually are.

It is contended by the appellant that there is evidence which would authorize the jury to infer that there was some defect either in the pulleys, or in the location of the machine, because- First, plaintiff testifies that on the occasion of the injury he had run the belt off from the tight pulley onto the loose one, about seven minutes before the starting of the machine which caused the injury; second, Dingley's brother testifies that he was formerly employed by the defendant in the operation of these machines, and on one occasion, about two months before the injury complained of, he ran the belt off the tight pulley onto the loose one, and started to go home, but was stopped by Mr. Dunlap, the superintendent, who directed him to go back, and stop the machine; that he went back, and pushed the belt off the tight pulley onto the loose one again, after which he started to go out, only to be again stopped by Mr. Dunlap, who directed him to go back and stay until the machine stopped running. This was again repeated, and, finally, the witness threw off the belt, and tied it up, Mr. Dunlap saying he would fix the card in the morning. Mr. Dunlap denies most emphatically any such occurrence, or that the machine was ever out of order to his knowledge. But his testimony is, of course, of no importance on this review, because the jury might possibly have believed the witness Dingley. The witness also testified to two other occasions when he claims the machine started without interference on his part, but he kept the information to himself, and it is not claimed that the defendant became aware of it. Adopting, as we must, the most favorable view to the plaintiff of the evidence to which we have alluded, the situation is as follows: The machine was such as was in ordinary use, and, for aught the evidence discloses, the best known. It was situated, with reference to the shafting, as were the other machines in that room, and in other mills. No special defect in its situation or construction was pointed out. No one pretended to be able to assign with certainty the cause of the transfer of the belt from the loose to the tight pulley, if it was in fact so transferred, but, because the machine started on this and three other occasions, it is insisted that the jury had a right to infer that there existed a defect of some kind, which the the defendant was negligent in not providing against, notwithstanding the precise defect was then, and has since remained, unknown. In other words, that the jury may find that the defendant failed in the discharge of his duty towards his employe, by omitting to provide against an alleged defect in a machine in ordinary use, which so far no one has been able to point out,-a proposition which, if sustained, extends the liability of the master to his servant far beyond its present boundaries, and would be without reason to support it.

In attempting to ascertain what inferences may properly be drawn from the testimony under consideration, other facts than those to which we have alluded must be borne in mind. It appears that for several years before the accident the machine worked as well as other machines, with the exceptionof the three occasions testified to by the injured boy's brother. John Hamilton operated it the day following the accident, and he testified that ‘it worked just the same as any other card. It ran all right. No difficulty about the belt slipping from one pulley to the other. I cleaned the machine at night in the usual way. I stopped the card. I took my hand, and shoved the belt over on the loose pulley. I waited until the card stopped; then I pulled the waste from under the card.’ John Dunlap,...