Ronca v. Wendell & Evans Co. ( 1915 )

Jenks, P. J.:

This is an action for negligence brought by servant against master wherein the former gained the verdict at Trial Term. There are but two features that require discussion.

The hand of the infant plaintiff when she was placing a napkin in a steam mangle was caught in the machinery thereof, was injured and was amputated a few days thereafter. One of the alleged negligences was a violation of the Labor Law in not properly guarding the machinery.^* The napkin was placed by the plaintiff first upon a convex brass table that was a part of the mangle, and thereupon the napkin was pushed by her under a small roller two inches in diameter, made of steel and covered with felt, whence it emerged to be taken up by the ironing rollers. This was the usual course. The defendant adduced evidence to show that this first roller was “a guard,” so meshed that if the fingers of the “ feeder ’’ {i. e., the person who placed on the table the napkin or other article to be ironed) by chance or by mishap came in contact with such roller they were pinched as a warning, and if any substance of any thickness went under the said roller the said roller was so meshed that it was thereby raised and the cogs went out of mesh. The proof that this roller was “ a guard ” was given by Mr. Hopson, the general manager of the defendant, and by Mr. Blake, who had been a foreman for the defendant at the time of this casualty. The learned counsel for the respondent argued that defendant’s contention that this roller was a “ guard ” was met completely by the fact that it revolved inwards from the “feeder.” Although this criticism is not conclusive, it should be considered. But defendant’s witness Martin, a worker in the laundry, in describing the machine,. calls this roller a “little guide roller,” and in another part of her testimony describes it as “a guide roller.” And defendant’s manager, on cross-examination, was asked: “Q. Isn’t the purpose of that roller to grip the napkin and pull it in ? A. No. Q. What is the purpose of it ? A. To guard the hand against going in there. Q. Why did it revolve ? A. Why, to help the goods in. Q. To pull the goods in; isn’t that so ? A. To help them in. Q. To pull them in ? A. No. Q. What do you mean when you say, ‘to help them in?’ A. When you push the goods under it, it carried it in, it didn’t pull it.” Considering both the action and the relation of this first roller to the ironing rollers, it cannot be said that this description of it as a “guide roller” is a misnomer. Calling a part of machinery a “guard” does not make it one, nor does the fact that incidentally it might serve either to warn or to protect the servant against danger. The jury could have concluded that the roller was not a guard, but was a part of the machinery designed to carry in the napkin (or other article) to the ironing cylinders. The evidence is neither so clear nor so credible as to take the question of proper guarding from the jury or to disturb its verdict upon that question.

The jury might have concluded that this roller was not a proper guard within the eye of the law. For there was proof that, despite it, the plaintiff’s hand when at its usual work was caught and held beneath it and an ironing roller. Even Blake and Martin, witnesses for the defendant, so testify. There was no proof that no other kind of guard, nor any additional guard, was possible. On his cross-examination Mr. Hopson did testify that it would not be “ practicable ” for a guard “ to have been placed immediately in front of the roller,” but that answer is not exhaustive of the question whether any other guard was practicable.

The learned counsel for the appellant urges the novelty of the casualty, but as the jury could have found that there was no guard at all within the contemplation of the law, this plea is not enough to absolve the defendant.

We think that the verdict is excessive. The infant was a young woman fifteen years old at the time of the casualty, and was in receipt of $4.50 a week. She has lost her left hand. We think that the verdict of $12,000 should be reduced to $9,000, and that the judgment as so reduced, and the order, should be affirmed, but without the costs of this appeal. If the plaintiff does not accept the reduction within twenty days a new trial should be granted, costs to abide the event.

Burr, Stapleton, Rich and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate to reduce the verdict to the sum of $9,000, in which event the judgment as so reduced, and the order, are unanimously affirmed, without costs.

* See Consol. Laws, chap. 31 (Laws of 1909, chap. 36), § 81, as amd. by Laws of 1910, chap. 106. Since amd. by Laws of 1913, chap. 286.—[Rep.