Loughlin v. Brassil

• Citation: 79 N.E. 854,187 N.Y. 128
• Parties: LOUGHLIN v. BRASSIL.
• Decision Date: 08 January 1907
• Court: New York Court of Appeals

187 N.Y. 128

79 N.E. 854

LOUGHLIN

v.BRASSIL.

Court of Appeals of New York.

Jan. 8, 1907.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Thomas Francis Loughlin, Jr., by Thomas Francis Loughlin, as guardian ad item, against Daniel S. Brassil for personal injuries. From a judgment (102 App. Div. 627,92 N. Y. Supp. 1132) of the Supreme Court, Second Appellate Division, affirming a judgment of the Supreme Court for plaintiff, defendant by permission appeals. Reversed.Thomas F. Magner, for appellant.

Melville J. France, for respondent.

HISCOCK, J.

Various errors were committed upon the trial of this case which require a reversal of the judgment appealed from. The plaintiff, a young man of 19 years, was injured while in the employ of defendant in a bookbinding establishment by having his hand caught in a press. It will not be necessary to describe the press in more than a very general and brief way. It was a machine about six feet high, bolted to the floor. In its top was a die turned face downward. A movable part of the press moved up and down against this, a pitman rod being an important part of the machine which conveyed motion to the press. A wrought iron bolt, 1 1/2 inch long, fastened with a half-inch nut, was employed in the machine in connection with the operation of the pitman rod, and it is claimed that upon the occasion of the accident the nut came off and the bolt dropped out of place, allowing the press improperly to take motion, whereby it unexpectedly came up and caught plaintiff's hand against the die as he was seeking to change it. There was evidence that the same thing had happened 10 or 20 times before with this nut and bolt. The defendant gave testimony to the effect that the bolt had not dropped out either before or at the time of the accident, but of course this question must be regarded as having been settled in favor of the plaintiff.

It is urged upon the argument of this appeal by respondent, as I understand it, that the evidence that the nut had come off and that the bolt had dropped out upon prior occasions permitted the jury without other proof to find that the bolt was defective and out of repair. Except for the aid of these suggestions, it would seem difficult to determine upon what exact theory or in what particulars the learned trial court did permit the jury to find that the machine was defective. Outside of general observations quite pertinent to this as an action of negligence, the trial judge only instructed the jury as follows: ‘It is claimed by the plaintiff that this machine was defective, that it was defective at the time he was engaged upon it at the time the accident happened, that the master disregarded his duty in furnishing him with a machine which was reasonably safe and in making a reasonable inspection and keeping the machine in proper repair.’ Assuming that the jury were told and understood that they might find a defect in the machine of the character now claimed, I think that the general application of this instruction was materially modified by further instruction subsequently given in response to defendant's request, and attention is particularly called to such subsequent instruction, because I regard it of importance in determining the correctness of certain still later refusals to charge in behalf of the defendant, of which complaint is now made.

The court charged: ‘By continuing in the employment of the defendant, after knowing that the bolt had come off 10 or 20 times, the plaintiff assented to the use of a machine liable to such an accident, and the defendant was entitled to continue to use the machine as it was, and to repair it from time to time as such accident occurred, and no negligence may be imputed to the defendant from so continuing to use the machine.’ The words, ‘to repair it from time to time as such accident occurred,’ are shown by the context to refer to the accident of the bolt getting out of place. Thus we have it as the law of this case that no recovery can stand against the defendant because he used a defective machine, and that his only duty in respect thereto, so far as the plaintiff was concerned, was to repair it; that is, replace the bolt from time to time as it dropped out. Under this rule, I do not see that any duty was left upon defendant in respect to the machine, except to use reasonable diligence and care in inspecting and keeping watch of it and in replacing the bolt when the nut dropped off.

With this interpretation in mind I pass to the refusals to charge, to which reference has been made. The requests were as follows: ‘(1) Defendant's counsel: The replacing of the nut on the screw was a detail of the work, and, if one of the defendant's employés was negligent in replacing the nut, such negligence was the negligence of a fellow servant, for which the defendant is not responsible. (2) Before the jury can impose any liability on the defendant for failure to tighten the nut, they must find that the defendant had notice, or by reasonable care could have obtained knowledge, that the nut had become loose again after being tightened in the morning.’ Under the law of the case as finally formulated by the trial judge, I am inclined to think that the first refusal was error; that the defendant, being entitled to use the machine as against the plaintiff subject only to an obligation to repair it by replacing the nut from time to time as it became loose, such repairing and replacing was a detail of the work which might be committed to an...