New York Biscuit Co. v. Rouss

• Decision Date: 28 May 1896
• Citation: 74 F. 608
• Parties: NEW YORK BISCUIT CO. v. ROUSS.
• Court: U.S. Court of Appeals — Second Circuit

74 F. 608

NEW YORK BISCUIT CO. v. ROUSS.

United States Court of Appeals, Second Circuit.

May 28, 1896

Hamilton Wallis, for plaintiff in error.

David Levintritt, for defendant in error.

Before LACOMBE and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

The plaintiff, a boy of 18, went into the employ of defendant, a manufacturer of crackers and biscuits in May, 1892. Until the following July, except for a few weeks, when he was sick, he was employed in helping the baker at the oven. Thereafter for a few days, he was set to work 'pulling scrap.' So far as appears, neither of these occupations was dangerous. Thereafter the foreman told him to take the dough and break it on a machine known as the 'dough-breaker.' Plaintiff testified that in response to such direction 'I told him that I never done it before; I don't know how to do it; and he left me and went away. ' When plaintiff returned the following day he was told there was no work for him at that time, and to come around the next day. He did that for several days, and finally, on July 20th, was re-employed, first at sweeping and afterwards at pulling scrap, and then about 1 o'clock the foreman told him to 'take the dough and break it up take it over to the break machine and break it up. ' Influenced, possibly, by the recollection of the cessation of employment which followed his former refusal, plaintiff took a mass of dough in his hands, and put it in the break machine once, and let it go through, and it came out in three slices, and, as it had to come out in one piece, he took the dough again, and pressed it down with his right hand, using his left hand to catch hold of it when it came out between the rollers. The fingers of his right hand got caught between the rollers, and his hand was crushed, which necessitated amputation. The dough breaker consists of a trough placed on an incline above two rollers of about 10 inches diameter. The dough is placed in this trough, and pressed down with the right hand, and as it emerges from the rollers is pulled out with the left hand upon a shelf placed below the rollers. The rollers are driven by power, and of course it was apparent to any one of ordinary intelligence that there was some risk connected with its operation. There was evidence in the case, however, from which the jury might find that there were special risks connected with the operation, the existence of which mould not be appreciated by an inexperienced person; that it was a treacherous machine, by reason of the fact that the dough obscures the rollers, and so it does not look dangerous when the dough is put on top; that to insure safety the operator must be careful to look only at the dough above the roller, and not allow his eyes to wander to the sheet of dough coming out from beneath them, trusting his left hand to find that sheet without the help of his eyes; that whenever it is necessary to give the dough a push the closed-up fist should be used, and thus the risk of the fingers being caught in the sticky dough, and so drawn between the rollers, avoided. There is no pretense that any instructions as to how he might operate the machine with safety were given to the plaintiff. The negligence of the defendant on which plaintiff relies was the failure of defendant or its foreman to give such instructions. The plaintiff in error concedes that 'ordinarily, where an accident happens in the use of a machine inherently dangerous, the absence of instructions as to its mode of operation, and the failure to point out the dangers attendant upon such operation, are imputed to the owner of the machine as negligence. ' But it is contended that a verdict should...