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Sullivan v. Schweinler

142 A.D. 940 Court Second Department, English

Delivered by Thomas, J.:

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p. 940
Second Department,
January, 1911.
Nellie Sullivan, an Infant, by Julia Ryan, Her Guardian ad Litem, Respondent v. Charles Schweinler, Doing Business under the Firm Name and Style of Charles Schweinler Press, Appellant.

Headnote

Master and servant — negligence—■violation of Labor Law.
Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on May 19, 1910.

The complaint charges that the defendant was negligent in furnishing “unsafe, defective, insecure and unprotected machinery, attachments and appliances,” and particularly that the machine by which plaintiff was injured was not guarded in compliance with the Labor Law. The evidence tends to show no breach of duty by the master, unless it be" in the failure to guard the rod which caught plaintiff’s hair, and the charge of the court should have related only to that. The Labor Law (Laws of 1901, chap. 9, § 81)[2] provides: “ All vats, pans’, saws, planers, cogs, gearing, belting, shafting, setscrews and machinery, of every description, shall be properly guarded.” The court should have submitted to the jury these questions : (1) Was it practicable to guard the rod; (2) should the defendant in the exercise of reasonable pruden.ee have expected that the rod, unguarded, would expose the plaintiff to unneces

p. 941
sary danger in the performance of her duties; (3) did the injury result from negligent failure to apply a practicable guard to the rod that would to a reasonable degree reduce an unnecessary exposure of the plaintiff in the due execution of her task; (4) did the plaintiff by her own negligence contribute to her injury; (5) did the plaintiff assume the risk of a danger obvious or ascertainable by her in the exercise of ordinary care on her part; (6) if all the questions be found in favor of the plaintiff, what is a fair compensation for her injury? The charge in regard to the defendant’s alleged breach of duty did not conform to the law which is stated in Wynkoop v. Ludlow Valve Mfg. Co. ( 196 N. Y. 324 ). For such error a new trial must be had, and it is unnecessary to review the facts. The Employers’ Liability Act[2] cannot be invoked by the plaintiff on account of the insufficiency of the notice. (Glynn v. N. Y. C. & H. R. R. R. Co., 125 App. Div. 186 ; Galino v. Fleischmann Realty & Construction Co., 130 id. 605; Mattson v. Phoenix Construction Co., 135 id. 234; Logerto v. Central Building Co., 198 N. Y. 390 .) The judgment should be reversed and a new trial ordered, costs to abide the event. Jenks, P. J., Burr, Carr and Rich, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

* Sic. See Gen. Laws, chap. 33 (Laws of 1897, chap. 415), § 81, as amd. by Laws of 1906, chap. 366 ; Consol. Laws, chap. 31 (Laws of 1909, chap. 36), § 81, as amd. by Laws of 1909, chap, 399.— [Rep.

Footnotes

  1. * See Laws of 1902, chap. 600; Labor Law (Consol. Laws, chap, 31; Laws of 1909, chap. 36), § 200 et seq.— [Rep.

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