Opinion
July, 1904.
Austen G. Fox and Gerald Hull Gray, for the appellant.
E.J. McCrossin, for the respondent.
The plaintiff, a girl 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 there 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 a drip pan underneath this machine was necessary, in view of all the existing conditions, to render it a reasonably safe machine to work upon and work with, then you may find the defendant liable because it did not furnish such an appliance or something of that sort, but only if you think that such an appliance was necessary to make the machine, on the whole, a reasonably safe machine to work with."
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 or "something of that sort," and we are referred to the decisions in which it has been held to be "error to permit a jury to find a verdict against a railway if the jury determine that the defendant ought to have had a flagman at a crossing." I think that the flagman cases are distinguishable in principle, by reason of the fact that the presence or absence of a flagman at a particular crossing is something outside the operation and management of the train, which are the matters in question in those cases. A typical case of this character is Cumming v. Brooklyn City R.R. Co. ( 104 N.Y. 669), in which the Court of Appeals, speaking of Mr. Justice CULLEN's charge to the jury, which was sustained by the decision as being correct, says that "the judge meant only to say that in running its cars, or in their management, the defendant need only use ordinary care, but that, if in thus running or managing its cars, it omitted precautions which in the use of ordinary care it should have adopted in order to prevent this injury then it was liable." Inasmuch as the judgment in favor of the plaintiff was affirmed, we have here the clearest implication that a jury may properly inquire whether an injury attributed to negligence would have been prevented by the adoption of one or more precautions in the discharge of the duty owing by the defendant to the plaintiff, and the decision has been so understood. In Petrie v. N.Y.C. H.R.R.R. Co. ( 63 App. Div. 473, 476; affd., 171 N.Y. 638) the Appellate Division in the fourth department, referring to the Cumming case, said: "As we understand the rule it is now, generally speaking, a question of fact for the jury to determine whether under all the circumstances of a given case a railroad company should have adopted some other precautions than those which were actually employed in the operation and management of its train while approaching a highway crossing." This rule, by analogy, supports the instructions which have been quoted in the present case of master and servant.
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 defeat her 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 been negligent and its negligence may have joined with hers to produce the accident, nevertheless, if she was negligent and her negligence contributed to the accident, it matters not how great the negligence of the defendant was, she cannot recover. This is the first proposition of law in the case." Nor did the court tell the jury, as is suggested in the brief for the appellant, that a master in guarding machinery must guard against the possibility of such an accident as this. The learned judge did say that the plaintiff's claim was that the wheels of the machine "ought to have been carefully guarded against the possibility of a person working with the machine getting his hand by some accident thrust into the gear;" but he followed this statement of what the plaintiff claimed by laying down the rule of law on the subject in language which showed that the defendant's measure of duty was not so high as that. "All that the law demands of the employer who furnishes machinery," he said, "is that his machine shall be reasonably safe, and the question here is whether the machine, guarded as it was, was reasonably safe. If it was, then there is nothing in that direction to make the defendant liable." Certainly the defendant had nothing to complain of in this instruction. The court's refusal to receive evidence to show that the machine had never "had an accident or break" was accompanied by the remark, "There is no question about it," showing that in the opinion of the judge no negligence could be predicated of any defect of such a nature as indicated by the question, and the ruling affords no ground for a reversal. In view of the other instructions which had been given, some of them very specific, on the question of contributory negligence and the plaintiff's assumption of the risk, it was not error to refuse to charge that she could not recover if she knew of the presence of the oil before the accident and did not tell the defendant. Some criticism is made upon certain remarks of the court during the trial as having been prejudicial to the defendant, but no request was made or exception taken concerning the same, and I cannot say that they were so manifestly objectionable or unfair as to have affected the result.
I think that there should be an affirmance in this case.
Judgment and order unanimously affirmed, with costs.