McCarragher v. Rogers

• Decision Date: 03 June 1890
• Citation: 120 N.Y. 526,24 N.E. 812
• Parties: McCARRAGHER v. ROGERS.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 526

24 N.E. 812

McCARRAGHER

v.ROGERS.

Court of Appeals of New York,

Second Division.

June 3, 1890.

Appeal from supreme court, general term, second department.

PARKER, J., dissenting. Affirming 44 Hun, 628, mem.

Arthur R. Robertson, for appellant.

James D. Bell, for respondent.

BRADLEY, J.

The plaintiff received an injury, resulting in the amputation of his right leg, while he was in the service of the defendant, in the paper-box factory of the latter, in the city of Brooklyn. The plaintiff was engaged at the printing and stamping press, and his business was to take from the cylinder sheets of straw board as they came from the machine prepared for boxes. In doing this work, he sat upon a table two feet in width, extending across that end of the machine, and parellel with the cylinder from which the sheets were taken as they came from the press. He sat with his right side towards the cylinder, his feet on the table; and his associate in the work sat facing him on the same table, with his feet also upon it. This was the position required to do their work. The table was supported by the projecting sides of the machine, in which were slots which laterally held the table in its place, but there was nothing to hold it down except the weight of and upon it. When the machine was in motion, the cylinder revolved, and the moving press-plate passed under the table, and back and forth, with rapidity; and under the table were also the plungers which operated the bed-plate. The velocity of the cylinder was considerable, and it brought out rapidly the scored and pressed sheets produced from the material with which the machine was fed at the other end. The operation of the cylinder and bed-plate was such that, if the foot or hand of the workman should be caught in between them, it would be seriously injured. The plaintiff's right foot in some manner was caught there, breaking and mutilating it, and the lower part of the leg, so as to require amputation just above the ankle joint. The questions presented were whether the accident was attributable to the negligence of the defendant, and whether the plaintiff was free from fault. The evidence bearing upon those questions was conflicting. The evidence on the part of the plaintiff was to the effect that without his fault the table on which he sat was, by some irregular operation under it of the bed-plate or plungers, suddenly thrown up out of the stockets in which it rested in such manner as to bring his foot in contact with the moving machinery, which caused the injury. The plaintiff was about 13 years of age. The other boy on the table jumped from it.

The fact that the plaintiff sustained this injury did not charge the defendant with liability unless it was caused by his negligence, and that was dependent upon the facts- First, that the machine was out of order; and, second, that he had, or was charged with, notice that it was so. The evidence upon that subject was so. The two occasions before this accident, and before the plaintiff went there to work, the table was thrown out in the same manner as in this instance, and on one of those occasions an injury was sustained. Those were the only times, so far as appeared, during the period of eight years the press had been in use there, that the table was displaced while the work was going on; and, if there was no cause for it other than in the operation of the machinery, it was some evidence of a defective or imperfect condition which was liable to place in jeopardy the boys engaged at work upon the table, and would seem to call either for reparation of the movement of the machinery, or of some means of guarding against injury to those employed in that particular service. It seems that in sitting on the table the legs of the boys were necessarily extended, with their heels resting on the table, and their feet upright. There was what was called a ‘fly-bar,’ from which the sheets as they came from the cylinder were taken. This bar was at or near the inner edge of the table; and whether it was low enough to stop the foot while so standing, of the workman, from going into the machinery, was a disputed question. At all events, it would not have that effect when the foot was in any other position on the table; and there was evidence tending to prove that protection may have been given by a network, or some guard placed near the inner edge of the table, without causing inconvenience to the service. This means of giving comparative safety against danger was, in view of the liability to injury from the defective operation of the machine, if such were the fact, entitled to some consideration on the question of the defendant's negligence, if he had notice of such condition. His duty was to use reasonable care to provide his employes with suitable machinery for the service in which they were engaged, and due care in keeping it in order. His attention had been called to the fact of the injury sustained by a boy while on the table, engaged in this work, three months before the accident in question occurred; and whether that was any notice to him that the machine was out of order was a question for the jury, inasmuch as there was some evidence tending to prove that the accident then was caused by the negligence of the person injured, although that person testified that he was entirely free from fault. That accident was such as to permit the conclusion that it was the defendant's duty to inquire into its cause, and that, if the apparatus was not in proper condition in any respect, the defect may, by a careful examination, have been discovered; and, if the jury found that it was then defective, they may, by reason of the lapse of time, have inferred and found that the defendant was chargeable with notice of it. There was sufficient evidence to take the case to the jury, and therefore the exception to the denial of the motion for nonsuit is not available to the defendant; and this would be so if the facts supplied by evidence after the plaintiff rested and the motion was made, were requisite to support the action. Painton v. Railway Co., 83 N. Y. 7.

The witness, John Murray, the person who received an injury while working at this press about three months before the time in question, having stated that, when he was injured, he was sitting where the plaintiff did on the table, when his accident occurred, was asked, ‘How did the injury occur to you?’ to which the witness, subject to the exception of the defendant, answered: ‘It jumped out of the socket in the same way. I was sitting on this side when the press under the table came out. What happened to you? I got my leg broke. Where did your leg go to? Into the bed of the press.’ The evidence was not important to show merely that another accident had previously occurred there, but its relevancy was...