Zajdak v. Lisbon Falls Fibre Co. — 127 A.D. 206

Majority

p. 206

Steven Zajdak, an Infant, by Joseph Zajdak, His Guardian ad Litem, Appellant, v. Lisbon Falls Fibre Company, Respondent.

Second Department,

June 5, 1908.

Headnote

Master and servant — injury by pulp machine — proximate cause of ’fall:— contributory negligence.

Where a stick used by a servant in removing accumulated .pulp from a pulp machine caught in holes which had worn in the roller and drew him suddenly toward the machine so that on letting go he slipped on the wet floor and fell into' the machine, it is error to nonsuit on the ground that the slip was the proximate cause of the injury. Under the circumstances it was a question of fact as to whether the fall was caused by the pulling forward of the stick.

Where the defect in said rollers had been called to the attention of the foreman and he promised to make repairs, the question of contributory negligence in continuing the work is for the jury. '

Appeal by the plaintiff, Steven Zajdak, an infant, by JosephZajdak, his guardian ad litem, from ,a judgment of the Supreme Court in, favor of - the defendant, entered in the office of the clerk

p. 207

of the county of Queens on the 2d day of November, 19Ó7, ujion the dismissal of the complaint by direction of the.court at the close óf the. plaintiff’s case, upon a trial at the Queens County Trial Term.

The action was by servant against master for damages for negligence.

Ira B. Wheeler, for the appellant.

G. Glenn Worden [Frank Verner Johnson with him on. the brief], for the’respondent.

The work of the plaintiff in the defendant’s pulp mill was to stand at the rear of a pulp machine with a stick in his hands, and taking it by one end draw the other end, which was pointed, along a roller from end to end, and in that way, clear the roller of constantly accumulating pulp. Some holes had worn in.the roller, and the stick would get caught in them, and in that way it would be suddenly drawn forward, and the plaintiff with it, unless he let go of it or could pull it out, as the roller, winch was parallel to him, revolved away from the plaintiff. The plaintiff called the attention of the foreman thereto, and he said the roller would be repaired. The stick afterwards got caught in one of the holes and as he was suddenly drawn forward and let go of it ]iis foot slipped on the floor and he fell into the machine .and was hurt. The learned trial Judge held that the cause of the fall was the slip, and non-suited on that ground. But it was a question of fact whether the predicament of the stick was not the cause of the slip, and if it was, it, and not the slip, was the proximate cause of the fall. That the floor was wet, as it necessarily was constantly,.does not matter; it still remains that the cause of the slip was the pulling forwa'rd of the stick. The question of contributory negligence in continuing at the work was for the jury.

The judgment should be reversed.. .

Jenks, Hooker, Rich and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event. ■