Welle v. Celluloid Co.
| Decision Date | 16 June 1903 |
| Citation | 175 N.Y. 401,67 N.E. 609 |
| Parties | WELLE v. CELLULOID CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Bernard Welle against the Celluloid Company. From a judgment of the Appellate Division (65 N. Y. Supp. 370) affirming, by a divided court, a judgment for defendant, plaintiff appeals. Reversed.
Stephen C. Baldwin, for appellant.
Joseph Larocque, Jr., for respondent.
The action is brought by servant against master to recover damages for personal injuries alleged to have been caused by the negligence of the latter in furnishing unsafe and improper tools for use in the work. The details of the operations required in the manufacture of the defendant's product it is unnecessary to recite, further than to say that large quantities of paper or pulp were treated with a mixture of nitric and sulphuric acid. The paper was put in an iron cylinder or circular pot about 3 feet high and 18 inches in diameter. The acid was then poured into the cylinder, where it was allowed to remain for about half an hour, after which time it was drawn off. The pot had two lugs or ears, in which there were eyes. When the acid was to be drawn off, two hooks attached to an iron chain running through a pulley above were put into the lugs, the pot raised by a windlass, and then its contents dumped into a spout called a ‘whizzer.’ The plaintiff had been employed in this work between three and four years. The hooks which during this period had been used to raise the pots were long, straight hooks; that is to say, the two parts of the hook were parallel, and the return part extended so as to bring the point even with the eye through which the chain was attached. The plaintiff was away from the work for a short time, returning about a week before the accident. During his absence there were substituted for the hooks previously used short hooks with flaring mouths, the portion of which towards the point was curved so that the point was directed outwards, towards the base of the hook. On the occasion of the accident the plaintiff and a fellow workman put the hooks in the lugs. The plaintiff (whether alone or with the other workman does not clearly appear) then went to the windlass and raised the pot. He returned to the pot, and placed his hands upon it to turn out its contents, when the hook which had been inserted by his fellow workman pulled out, that side of the pot fell down, and the acid was discharged upon the plaintiff, by which he was severely burned, and one eye destroyed. It appeared that on one occasion, during the absence of the plaintiff from the work, the hook had pulled out during an attempt to raise the pot. Expert evidence was given by the plaintiff, tending to show that the new form of hook was likely to pull out, on account of its shape; that, when the chain was tautened in raising the pot, the lug, instead of settling down to the base of the hook, might easily and naturally rest on the curve at the mouth of the hook, and thus what is called a ‘forced axis' be formed; that, in such situation, any movement of the pot would tend to throw it off the hook; and that it might slip off the hook without being moved. At the close of the plaintiff's case, the learned trial court dismissed the complaint; holding that, as the plaintiff had worked for a week with this kind of hooks, he had assumed the risk of their use. The judgment on the nonsuit was affirmed by the Appellate Division, a majority of the court believing the evidence insufficient to warrant the submission of the defendant's negligence to the jury.
Though the case is a close one, we think the nonsuit was erroneous. Doubtless, the plaintiff, by his long service-three of four years-assumed the risks which the general plan or method of the operations of the defendant involved. Therefore the evidence of an expert as to the manner in which acid was handled in other factories, and the one in common use, was properly excluded. But the plaintiff did not necessarily assume the risk of defective or improper appliances in that plan or method of work, unless the defect was obvious, or he had so long used the appliance as to be chargeable, in law, with knowledge of its insufficiency. He had the right to rely on the presumption that the master had done his duty in furnishingsafe and suitable appliances. So far as his experience had gone, he had seen that there was no danger of the pot falling off the hooks, or of the hooks pulling out of the lugs. The jury might have found that the accident was caused by the change in the form of the hooks. The plaintiff knew of this change, but it does not follow that he knew of...
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... ... furnish his employe with a reasonably safe place in which to ... work. Armour v. Hahn, 111 U.S. 313, 4 Sup.Ct. 433, ... 28 L.Ed. 440; Welle v. Celluloid Co., 175 N.Y. 401, ... 67 N.E. 609; Rincicotti v. John S. O'Brien ... Contracting Co., 77 Conn. 617, 60 A. 115, 69 L.R.A. 936; ... ...
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... ... in which the servant is engaged.' ... This is ... in accord with the great weight of authority. Welle v ... Celluloid Co., 175 N.Y. 401, 405, 67 N.E. 609; Iron ... Co. v. Pace, 101 Tenn. 476, 48 S.W. 232; Thomas v ... Quaterman, L.R. 18 Q.B.Div ... ...
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...to realize the hazard caused thereby, the risk is not assumed (Davidson v. Cornell, 132 N. Y. 228, 30 N. E. 573;Welle v. Celluloid Co., 175 N. Y. 401, 67 N. E. 609). The plaintiff, without any previous experience in his work, was unjured within four days after his employment. The statute wh......
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...to justify the trial court in holding as a matter of law that the plaintiff could not recover upon that ground. Welle v. Celluloid Co., 175 N. Y. 401, 405,67 N. E. 609. Upon the proof in this case it cannot, we think, be properly held, as a matter of law, that the risks incurred by the plai......