Flynn v. McLoughlin

This is a master and servant case, to recover damages for a personal injury. The jury found a verdict for the plaintiff for $2,500 damages. She lost the end or first joints of three fingers of her right hand. The verdict was not excessive, and there is no claim by the appellant to that effect. A motion for a new trial was denied. Prom the judgment and order the defendant appeals. It is contended that the verdict was against the weight of evidence; that the plaintiff was guilty of contributory negligence; that the court erred in the admission of evidence; and that the court should not, or could not, permit the plaintiff to amend her complaint at the trial, as it did. I will take up first the question as to the amendment permitted at the trial.

[1-4] The accident happened while the plaintiff was at work on a stamping machine used for the manufacture of the backs of paper “valentines.” There were two dies, the upper one being described as the “male” and the lower one the “female.” The upper one descended and the lower one rested stationary. The contact between the dies produced the embossing upon the paper. This paper came in sheets and was laid upon a table attached to the machine, and fed into the machine between gouges set upon the table. The sheets were long enough for four “cuttings” between the dies. After each cutting, the fingers of the operator approached more closely to the dies as the feeding went on. The upper die was brought down by pressure of the operator’s foot upon a treadle. In her complaint she pleaded that the machine was “defective and dangerous,” and that the punch or die would fall “without any pressure being exerted by the plaintiff upon the treadle.” At the trial, plaintiff testified that, while she was at work upon the machine, some paper got lodged in the upper die, and that she stood up to detach it with her hand, and that while her right hand was between the dies, being used in detaching the paper, the upper die descended and caught the tips of her fingers, crushing them against the lower or female die and severing them from her hand. She testified on her direct examination that she may have touched the treadle accidentally with her foot. So far as her testimony went, it established no negligence on the part of the defendant and disclosed no defect in the machine, unless it be a failure to “guard” the machine, as required generally by the Labor Law. She had not pleaded a failure “to guard” as a specification of negligence. If she intended to give such proof, she should have pleaded such claim of negligence. Martin v. Walker & Williams Mfg. Co., 122 App. Div. 280 , 106 N. Y. Supp. 708 . The plaintiff set out to prove that the machine was not guarded in such manner as to prevent the upper die from descending while the operator’s fingers were inserted in the space between the dies, and that it was practicable to use a guard for this purpose, and that numbers of safety devices, for this_j?urpose, were in use in the city of New York, the accident happening in Brooklyn. All this evi

[5] That the machine was “unguarded” must be conceded. That it was practicable to guard it was undisputed by any testimony on behalf of the defendant. Whether it was necessary to guard it, in the view of its particular ordinary use, was a question for the jury, to be decided in the light of such dangers as should be reasonably foreseen by the master as likely to result from its ordinary use. Scott v. International Paper Co., 204 N. Y. 49 , 97 N. E. 413 ; Wynkoop v. Ludlow Valve Mfg. Co., 196 N. Y. 324 , 89 N. E. 827 , 30 L. R. A. (N. S.) 36 ; Bell v. Procter & Gamble Mfg. Co., 152 App. Div. 434 , 137 N. Y. Supp. 266 .

[6] Among the dangers against which the statute attempts to provide are those which may arise from an inadvertent or accidental act of the operator. Kirchoff v. Creamery Supply Co., 148 Iowa, 508 , 123 N. W. 210 ; Callopy v. Atwood, 105 Minn. 80 , 117 N. W. 238 , 18 L. R. A. (N. S.) 593 .

[7] The defendant gave evidence that in the use of this machine during a great number of years, no accident had happened upon it, but if such an accident was reasonably to be anticipated, the fact that there had been no former accident was not a defense, but was a subject only for the jury’s consideration on the question of the master’s duty. Cleveland v. N. J. S. Co., 125 N. Y. 299 , 26 N. E. 327 ; Donnelly v. City of Rochester, 166 N. Y. 315 , 59 N. E. 989 ; Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310 , 66 N. E. 968 , 61 L. R. A. 829 .

[8] While, in this case, the die would not have descended and crushed the fingers of the plaintiff if she had not, as she says she may have done, accidentally and inadvertently touched the treadle with her foot, yet the proofs as to the practicability of guarding the machine showed that there were safety devices or “guards” in ordinary use that would, when used, prevent the plaintiff’s hand from being caught between the dies, leaving out of consideration altogether the “treadle lock,” which the trial court declared was “out of this case.” The defendant gave evidence to show that, in the ordinary use of its machine, it was not contemplated that the operator should ever insert her fingers in the space between the dies, and that sticks were furnished and used

The judgment and order should be affirmed, with costs.