Gallagher v. Lehberger

• Decision Date: 18 June 1913
• Citation: 87 A. 450,84 N.J.L. 712
• Parties: GALLAGHER v. LEHBERGER.
• Court: New Jersey Supreme Court

87 A. 450

84 N.J.L. 712

GALLAGHER

v. LEHBERGER.

Court of Errors and Appeals of New Jersey.

June 18, 1913.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Error to Supreme Court.

Action by Daniel P. Gallagher against George Lehberger. Judgment for defendant, and plaintiff brings error. Reversed.

Alexander Simpson, of Jersey City, for plaintiff in error.

Lindabury, Depue & Faulks, of Newark, for defendant in error.

BERGEN, J. The plaintiff at the time of the accident, which is the basis of this suit, was 13 years of age, and employed by the defendant to assist in one of the processes of the manufacture of wire, his occupation being to prevent as far as possible the tangling of the superheated wire which formed into a loop as it passed from one reducing machine to another, for which purpose he was supplied by his master with an iron rod, having a hook at one end. In front of each machine there was an iron trough into which the heated wire fell as it came through the machines, where it was seized with a tongs by other employés, and carried to the next machine through which it was run for the purpose of further reduction in size. There was a slack in the wire between the two machines creating a loop, which it was the business of the plaintiff to pull with the hook, so that it would not kink or tangle. The machines stood side by side in a parallel line; and, when the accident occurred, an intervening machine was passed and the wire was carried to the one next beyond it, thus forming a larger loop, and requiring plaintiff to use his hook to raise it over the trough in front of the second machine, and while doing this, and keeping the loop from getting into a tangle, the hook was suddenly pulled from his hand, and the wire at once became tangled, coiled around plaintiff's leg, and, as he says, "snapped" it off. I think the testimony shows that plaintiff was instructed regarding the use of the hook to prevent, as far as possible, the tangling of the wire, but there is no evidence that he was warned of the danger he was subjected to, if for any reason the wire became tangled, and this the trial court assumed in allowing the nonsuit, which is the error assigned, for it was put upon the ground that there was no evidence that defendant knew or ought to have anticipated that what did, was likely to, happen, and, if he had no such knowledge, then, of course, he could not warn against such danger.

It also appeared that on a previous occasion, when the master was present, there was a kink in the wire which pulled the hook from plaintiff's hand, and the wire flew up and struck the master, but without serious consequences. The master had been engaged in manufacturing wire for some time, and was conversant with the business. The plaintiff's case is rested upon...