McCue v. Nat'l Starch Manuf'g Co.

• Decision Date: 10 April 1894
• Citation: 142 N.Y. 106,36 N.E. 809
• Parties: McCUE v. NATIONAL STARCH MANUF'G CO.
• Court: New York Court of Appeals Court of Appeals

142 N.Y. 106

36 N.E. 809

McCUE

v.NATIONAL STARCH MANUF'G CO.

Court of Appeals of New York.

April 10, 1894.

Appeal from supreme court, general term, second department.

Action by Jerry McCue against the National Starch Manufacturing Company for injuries received in defendant's employ. From a judgment of the general term (21 N. Y. Supp. 551) affirming a judgment on a verdict for plaintiff, defendant appeals. Reversed.

E. Countryman, for appellant.

Benjamin W. Downing, for respondent.

O'BRIEN, J.

The plaintiff, while in the employment of the defendant, in the month of August, 1891, sustained a very serious injury to his right arm and hand, for which he recovered the judgment appealed from. There is little, if any, dispute as to the facts, and none whatever as to the manner in which the accident occurred. The defendant's business was manufacturing corn starch. The plaintiff had been employed in the factory as a day laborer, for about three years prior to the injury, in the feed department. In the room where the plaintiff was so employed there are a number of cisterns, standing upon the floor in double rows, each cistern being six feet high and about sixteen feet in diameter, and each row of cisterns being separated from the other by a trough or gutter, connecting with the cisterns on either side; and this gutter is covered with planks, forming a platform about two feet high from the floor, upon which the workmen stand to pass to and fro in the discharge of their duties. There are several plug holes on the side of each cistern, which are used to draw off the water, and another one in the bottom, operated by a crank at the top, to let out the feed; and also one or two steps on the outside, to enable the workmen to ascend high enough to remove and replace the plugs, as well as move the lever which sets the stirrer in motion. Over each row of cisterns there is a line of shafting, supported by a framework of beams, about two feet below the ceiling. This shafting pierces the vertical cogwheel located over each cistern, which is fastened to the main shaft by means of a key or pin placed in a groove, and this cogwheel may be brought into connection with a similar horizontal wheel attached to the upper end or top of the stirrer, which, when in operation, turns the stirrer used to stir up the feed in the cistern, and to assist in expelling it therefrom through the plug holes. These cogwheels may, by means of a lever, be readily thrown in or out of gear for the purpose of starting or stopping the stirrer, and the whole line of shafting over the entire row of cisterns may also be disconnected from the power by which the machinery is run, by means of a clutch provided for that purpose. The plaintiff's duties as a workman consisted in managing these plugs, by removing and replacing them from time to time, and operating the lever over the cisterns or vats which placed the horizontal cogwheel in or out of gear with the vertical wheel. This lever could be moved by standing on the upper step outside of the cistern. Sometimes the driving chain or belt which passes over the main power wheel in another part of the building, and connects it with the other machinery, would come off, thus stopping the machinery. The plaintiff and other employés sometimes assisted in replacing this chain when the machinery was not in motion. With this exception, the plaintiff's connection with the care of the machinery, or its use or management, seems to have been confined to moving the lever which placed the stirrer and the vertical wheel in and out of gear. On the 31st day of August, 1891, while the machinery was in motion and the plaintiff was performing his usual duties, the pin or key which locked one of the vertical cogwheels over a cistern to the main shaft dropped out, thus loosening the wheel so that it did not move with the shaft and did not turn the wheel operating the stirrer, as it should have done. The plaintiff undertook to replace the key, and thus relock the wheel to the shaft, with a spike, and with this view crawled up and over the framework which supported the shaft and wheel, and, while the shaft was in motion, inserted the spike with one hand while clinging with the other hand to the beam on which he lay. Having with some difficulty inserted the spike, the main cogwheel immediately moved with the shaft and...