Sweeney v. Berlin & Jones Envelope Co.

• Decision Date: 02 March 1886
• Citation: 101 N.Y. 520,5 N.E. 358
• Court: New York Court of Appeals Court of Appeals
• Parties: SWEENEY v. BERLIN & JONES ENVELOPE CO.

101 N.Y. 520

5 N.E. 358

SWEENEY

v.BERLIN & JONES ENVELOPE CO.

Court of Appeals of New York.

Filed March 2, 1886.

Mr. Logan, for appellant.

Mr. Gleason, for respondent.

DANFORTH, J.

A motion by defendant for a nonsuit was denied, and the plaintiff had a verdict after instructions to the jury, to which, as the case states, no exception was taken by either party. We have therefore only to inquire whether the evidence justified its submission to the jury, as sufficient in any reasonable view to warrant a recovery. Burke v. Witherbee, 98 N. Y. 562.

The machine by which the plaintiff was injured, was moved by steam, over which he had no control; but, when necessary, its operations could be held in check by the pressure of his foot upon a pedal. The process of embossing required that the plate and die should register or coincide. To effect that, he necessarily placed his hands between them, but, before doing so, put his foot upon the pedal and stopped the press; then ‘all of a sudden,’ he says, ‘the cam came around, and jolted a little harder than it usually does, and my foot slipped;’ the machine started; he got one hand out, but the other was caught between the plates and crushed; hence the injury complained of. By a timely removal of the belt through which power was communicated to the machinery he could have avoided all danger. Whether, under the circumstances, he should have done so, was for the jury to say, and their verdict must be deemed conclusive in his favor upon that point.

To sustain the judgment in other respects the plaintiff alleges negligence on the part of the defendant in not providing a ‘clutch,’ or some contrivance other than the pedal, to prevent motion in the machine while the operator's hands were exposed to danger. It is important to notice that no fault was found with the condition of the pedal or other contrivances, or the management of the engine. It may very well be that, had the surface of the pedal been cut or roughened like a file or rasp, its holding power would have been greater, but there is no evidence that it was ever in that condition, nor but that its surface was smooth or slippery when the plaintiff, five or six years before, entered the employment of the defendant and began to use the machine. The complaint to the superintendent was not as to the condition or any imperfection of the pedal, but as to its sufficiency. The plaintiff testified:

‘I stated to him that the only means of throwing this machine out of gear or stopping it was by putting the foot on that little treadle. Then that could not be done, unless the cam had got around it; the cam would have to clutch it before you could do that.’

So the pleading and the plaintiff's evidence show that he was directed ‘to use and operate’ the Isaac Adams Press, ‘which was an old embossing press, having no late or modern improvements for using or operating the same in safety;’ that he entered upon the work in question upon belief that it was safe, ‘but at the same time told the defendant that he thought it required and ought to have an additional apparatus to stop the same, and render it perfectly safe and secure, but he was required to proceed with the work without any change or improvement, although he requested the same to be furnished.’ It must be conceded, in favor of the plaintiff, that the jury would have been authorized to find these facts; and, although the complaint does not allege it, there is testimony tending to show that what the plaintiff asked was that a ‘clutch’ be attached to the machine, and that the superintendent referred him to the machinist, who promised to attend to it as soon as he had time. All this, however, was before the work was undertaken in doing which the accident happened. Upon that occasion the plaintiff says:

‘I told him it was an ugly job to work on, and he told me to go ahead with it and be careful; and if I did not care about doing it, I could get out; that there were plenty of other people waiting for employment; that there were men coming in there every day looking for it. I asked him at different times to have it improved. I asked him if he would not have the press improved by having a brake put on it. He told me to go on, and if I did not, that there were plenty waiting for the job. I believe then I asked him about having the press repaired, having the improvements put on it, and he referred me to the machinist. I went to the machinist, and he said that he would do all this that I explained to him about having the press improved; that he would do it when he had time.’

It is evident that this is not a case where the machine by means of which the business was carried on was temporarily out of repair, as in Clarke v. Holmes, 7 Hurl. & N. 937, or Kain v. Smith, 89 N. Y. 375, or where the defect exposed the servant to any latent extraordinary danger; but at most one where the employer failed to discard a machine, or part of a machine, and supply its place with something different, and, in the opinion of the plaintiff, something...