Citation Numbers: 97 A.D. 43, 89 N.Y.S. 635
Judges: Bartlett
Filed Date: 7/15/1904
Status: Precedential
Modified Date: 1/13/2023
The plaintiff, a gild of seventeen in the service of the defendant, corporation, was injured while at work upon a twisting- machine-against which she fell in consequence, as she asserts, of slipping in a puddle of oil'which had accumulated upon the floor, so that her hand was thrust in between the cog wheels in such a manner that she suffered the loss of four fingers. When asked whether there ' was any covering or protection in that part of the machine where the cog wheels were, she said: “Not on the inside—on the outside ther° was. Where my hand went there was no protection, over these ten or twelve inches.” The plaintiff further testified that she had not seen the puddle of oil before the accident; that it was eight or ten inches “ big; ” and that the oil came from underneath the machine and directly in the place where she had to step in doing her work. The plaintiff’s sister had noticed this accumulation of oil there, according to her testimony, and had notified the defendant’s assistant foreman of it about a week before the accident.
In such a case, of course, the gravamen of the charge against the master is the failure to furnish the servant with a reasonably safe place in which to do the master’s work and reasonably safe appliances to work with. The actual condition of the place and appliances may be shown; the presence or absence of safeguards calculated to protect the employee from injury, and every fact relevant to the question whether the place and appliances, as ■ the servant was required to use them, were or were not reasonably safe.
On the trial of the present action it appears to have been suggested in behalf of the plaintiff that a drip pan ought to have been provided by the defendant to prevent the accumulation of oil on the floor, which rendered it dangerously slippery; and on this subject the learned trial judge charged the jury as follows: “ If you think that
At the close of the charge counsel for the defendant said : “ I except first to your Honor’s remarks about the drip pan. I ask your Honor to charge that there is no evidence in the case that a drip pan was necessary,” to which the court responded: “ I leave that to the jury as a matter of fact,” and an exception to the refusal to charge as requested was duly taken in behalf of the defendant.
It is said in the brief for the respondent that the defendant did not except to the portion of the principal charge which I have quoted, but I think the statement of counsel that he excepted to the court’s remarks about the drip pan pointed clearly to that portion of the charge and was sufficient to raise the question of its correctness.
Still further, on the same subject, the court said, in answer to one of the requests of defendant’s counsel: “ The only question is whether it was necessary, to make the machinery reasonably safe for a person to work there, that there should be a drip pan to prevent the floor from getting slippery.” An exception was also taken to this instruction.
The learned judge further charged the jury as follows: “Her own negligence will defeat her if it caused the accident or contributed to cause it, and if the danger was obvious she cannot recover. But if she is not defeated by either one of these considerations, then the defendant is liable if it was negligent either in not furnishing a reasonably safe machine in that it lacked sufficient guards about the dangerous parts, or lacked a drip pan, or was negligent in not giving her the necessary and proper instructions.”
It is contended in behalf of the appellant that it was error thus to permit the jury to find a verdict simply on the view which they might take of the question whether the defendant ought not to have provided a drip pan ór “ something of that sort,” and we are referred to the decisions in which it has been held to be “ error to
It seems to me that the appeal presents no other serious question^ Counsel for' the appellant in asserting that the charge allowed the-jury to find that' the defendant was liable, whether the plaintiff was-, negligent or not, must have overlooked not only the statement of the learned .trial judge already quoted, where he told the jury that, the plaintiff’s own negligence would defeather if it caused the accident or contributed to cause it, but also this instruction near the beginning of his remarks: “ Even though the defendant may have
I think that there should be an affirmance in this case.
Judgment and order unanimously affirmed, with costs.1