McCann v. Mathison , 33 N.Y.S. 263 ( 1895 )

Clement, Oh. J.

This case comes before us on an appeal from a judgment of nonsuit, and, therefore, there is no dispute as to the facts. The plaintiff, who was then fourteen years of age, on August 2, 1893, at seven o’clock in the morning, sought work at the cooperage factory of defendants in this city. The foreman put him at work on a buzz saw. He was shown how to saw staves, which were twelve or fourteen inches long, in two pieces crosswise. Plaintiff, after working three or four hours, involuntarily allowed his left hand to come in contact with the saw, and, as a result, the thumb and two fingers were cut off. There was nothing concealed about the saw, and its rapid movement was open and apparent.

The case of Crown v. Orr, 140 N. Y. 450, is directly in point in favor of the contention of defendants, except, in that case, the plaintiff was nineteen years of age and had worked around the planing machine on which he was injured for three weeks. In the case of Ogley v. Miles, 139 N. Y. 458, the plaintiff was injured on a buzz saw. At the time he was sixteen years of age and had previously worked on a saw for some time. The Court of Appeals held that the case should have been dismissed. In Buckley v. Gutta Percha Co., 113 N. Y. 540, the plaintiff was a boy of the age of only twelve ■ years, and had worked two full days in the factory, and sustained an injury by a fall on a dangerous machine. The court there held that it is not negligence simply to employ a minor of the age of twelve years on a dangerous machine; also that, if the danger is open and apparent, the minor takes upon himself the usual risks in the same manner as an adult. In White v. Wittemann Lithographic Co., 131 N. Y. 631, the plaintiff was thirteen years of age and was - injured in a factory after an employment of three months. Judge Earl there said (p. 635), “ The rule of law laid down is that the omission by the employer of instructions in such a case does not impose upon him liability, provided the boy knew by experience or observation the nature of the machine and the dangers to be apprehended therefrom, and so we held in Hickey v. Taaffe, 105 N. Y. 26.” It is clear, as matter of fact, that a buzz saw is a dangerous machine, and that its dangers are open and apparent to an adult, and, under the authorities cited, to a minor.

We hardly think that an opinion was necessary in this case, as the authorities in the Court of Appeals are very plain on the points involved, but have written our views out of respect to the learned counsel for the appellant.

It follows that the judgment and order denying new trial must be affirmed, with costs.

Osbobne, J., concurs.

Judgment and order affirmed, with, costs.