Rice v. Eureka Paper Co.

• Decision Date: 09 April 1903
• Citation: 66 N.E. 979,174 N.Y. 385
• Parties: RICE v. EUREKA PAPER CO.
• Court: New York Court of Appeals Court of Appeals

174 N.Y. 385

66 N.E. 979

RICE

v.EUREKA PAPER CO.

Court of Appeals of New York.

April 9, 1903.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Herbert J. Rice against the Eureka Paper Company. From an order of the Appellate Division (75 N. Y. Supp. 49) reversing a judgment in favor of plaintiff, and granting a new trial, plaintiff appeals. Reversed.

Frank C. Sargent, for appellant.

James Devine, for respondent.

WERNER, J.

This action is brought to recover damages for injuries sustained by plaintiff through defendant's alleged negligence. The facts which for the purposes of this appeal must be taken as true are briefly as follows: In April, 1900, and for a number of years prior thereto, the defendant was engaged in the manufacture of paper in its mill located at Oswego Falls, N. Y. As part of its equipment, it had a machine known as a ‘rag cutter,’ which was on the second floor of the mill, almost directly over the main power shaft, which extended through the first story of the building, near the ceiling. This rag cutter, roughly described, consisted of a feed table about three feet long, one end of which connected with a large, slowly revolving cylinder, with teeth or spikes upon its circumference. Underneath this cylinder was a stationary plate, and behind this an arrangement of rapidly revolving knives. The rags, rope, and other materials to be cut up were fed into the machine by the operator, who stood at the end of the feed table. As this material reached the spiked cylinder, it was drawn in and subjected to pressure, which brought it into contact with the knives, where it was cut into small fragments. Near the end of the axle or shaft of this machine, but beyond the reach of the operator when standing at his position in front of the feed table, were two pulleys-one tight, the other loose, and both covered by a box. On the power shaft in the lower story there were also two pulleys similarly arranged. These two sets of pulleys were connected by a belt, which, when on the tight pulleys, transmitted the power from the main shaft to the rag cutter, and set it in motion. The only way in which this machine could be stopped, in the room where it was located, was to life the cover or box from the pulleys on the machine's axle, and, with a stick, to guide the belt from the tight pulley to the loose one; and in starting the machine this process was, of course, reversed. If the power was to be shut off at the main shaft, that was done on the floor below, by means of a longer stick, with which the belt was shifted to the loose pulley on the power shaft. Beyond these contrivances, there were no means by which the machine could be stopped when the power shaft was in operation. Belt shifters and belt tighteners were then in common use in other mills upon machines of this character, and by their use an operator could, without leaving his position, stop his machine almost instantly. Defendant then had in its mill a belt tightener, which had been made for this machine, but which, for some unexplained reason, had not been used. On the 14th day of April, 1900, while the plaintiff was engaged in feeding this machine, his right hand became entangled in a mesh of string, and was being drawn slowly toward the spiked cylinder. In attempting to disengage it, the other hand was also caught in the mesh, and both were drawn to the cylinder and upon the knives, where they were so mangled that the right hand was utterly destroyed, and the left one was annihilated, with the exception of a small portion of the palm and a single finger. At this time the plaintiff had been employed by the defendant for nearly 18 months, and had been operating this machine for over a year. He was 40 years of age, ordinarily bright, and fully understood the construction and operationof this machine. He knew that a belt tightener had been made for it, but not used, and he was aware of the danger incident to the operation of the machine without either a belt shifter or a belt tightener. This is clearly established by his testimony to the effect that, on the Saturday night preceding the Wednesday on which he was injured, he told defendant's treasurer that the machine ought to be provided with a shifter, and that he would quit if one was not put on. He says that the treasurer then told him the mill would be shut down for other repairs the fore part of the following week, and while shut down they would put on a shaft or a tightener, and that, relying upon this promise, he continued work until he was injured.

Upon these facts two propositions are so clearly established that they are practically conceded. The first is that the defendant, as employer, furnished to the plaintiff, as its employé, a machine that was not reasonably safe, because it lacked the necessary appliance to stop it quickly in case of accident. The second is that the plaintiff, by accepting employment upon this machine with full knowledge of its defects and dangers, voluntarily assumed the risks incident thereto; and this is equally true whether we regard the machine as lacking in improved appliances which the defendant was under no legal obligation to adopt, or as defective in respect of repairs which it was the defendant's duty to make. If there were nothing further in the case, the bare statement of these two propositions owuld conclusively bar plaintiff's claim for damages. But we must assume for the purposes of this appeal that there was a promise on the part of the employer to remedy the defects in the machine, in reliance upon which promise the employé remained at work, instead of quitting, as he had threatened to do. This is the point upon which the case turns. The plaintiff testified that on the Saturday night before the accident he told the treasurer of the defendant that this machine ought to have a shifter or tightener on it, and that he would quit work unless one was put on. He says that the treasurer told him the mill would be shut down for other repairs the fore part of the next week, and while it was shut down they would put on a shifter or a tightener. The plaintiff further says he believed this and relied upon it, or he would not have remained at work. He did stay, and on the Wednesday of the ‘next’ week, before the mill was shut down or a shifter or tightener put on the machine, he was injured as described. Upon this evidence the plaintiff contends that the assumption of risk which would ordinarily bar his right of action was suspended during the running of the promise to repair, and for a reasonable time after the period when it was to be fulfilled. The defendant meets this argument with the assertion that such a promise, if made, cannot suspend or shift the risk assumed by the employé, because it was a promise not to be performed at once, but at a future time; that during the interim between the promise and the time for its fulfillment, and for a reasonable period thereafter, the plaintiff remained at work as much at his own risk as before the promise was made, because he knew it was not to be fulfilled at once, but at a later and specified time. The narrow and concrete question presented by these conflicting claims is whether such a promise at once absolves the employé from the risk which he had theretofore voluntarily assumed, or whether the risk is continued until the time when the master's promise to repair is to be fulfilled. Before proceeding to analyze the promise upon which plaintiff's cause of action and defendant's liability depend, let us consult the text-writers and the reported decisions upon the subject.

Judge Cooley, in his work in Torts (pages 559, 560), says: ‘If the servant, having a right to abandon the service, because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant, by continuing in the employment, engages to assume the risk. So far as the particularperil is concerned, the implication of law is rebutted by the giving and acceptance of the assurance, for nothing is plainer or more reasonable than that the parties may and should, where practical, come to an understanding between themselves regarding matters of this nature.’ Judge Thompson, in his work on Negligence (volume 2, p. 1009), thus states the rule: ‘But a servant does not, by merely continuing in the service after knowledge of defects in the machine which he is obliged to use, assume the risks attendant upon the use of such machinery. Such a result only follows where he continues in the service without objection or protest, or without being induced by his master to believe that a change will be made. If the master promises to remedy the defect, or has held out inducements to the servant to remain in the service, the mere fact of his having remained in the service will not, of itself, exonerate the master from liability. If the servant, after acquiring knowledge of the defect, complains of it to the master, and the master assures him that it will be repaired in a reasonable time, he will not be presumed to have waived the defect by remaining for such reasonable length of time in the service.’ Other well-known text-writers state the rule in substantially similar terms. Shearman & Redfield's Law of Negligence [5th Ed.] vol. 1, § 215, p. 372; Bailey on Master's Liabilities for Injuries to Servants, p. 207; Dresser's Employers' Liability for Injuries to Servants, § 115, p. 583; Whittaker's Smith on Negligence, p. 172; Burrows on Negligence, p. 120; Wood's Law of Master and Servant, p. 753, § 380. The following English authorities support the doctrine laid down by the text-writers above cited: Holmes v. Worthington, 2 Foster & Finlason, 533, is to the effect that if a...