Daly v. Alexander Smith & Sons Carpet Co. — 23 N.Y.S. 269

Majority

p. 269

(69 Hun, 77.)

DALY v. ALEXANDER SMITH & SONS CARPET CO.

(Supreme Court, General Term, Second Department.

May 8, 1893.)

Headnote

Injury to Employe—Assumption of Risk.

In an action by a servant, employed as a carpet weaver, for personal injuries caused by a loom wire flying out, and striking Ills eye, it appeared that the wires were liable to fly loose. It was plaintiff’s duty to watch them, and, if one broke, to replace it with a spare wire hung on the loom. An inspector examined the wires before they were put in. It did not appear that the wire was bad, or that such break was usually dangerous. Held, that the master was not liable, as the servant assumed the risk.

Appeal from circuit court, Westchester county.

Action by Mary F. Daly against the Alexander Smith & Sons Carpet Company for personal injuries. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Affirmed.

Argued before BARNARD, P. J., and PRATT, J.

Rudd, Hunt & Wilder, (James M. Hunt, of counsel,) for appellants.

Joseph F. Daly, for respondent.

The plaintiff is a carpet weaver. On the 19th of September, 1891, while weaving for the defendant, a head came off from the end of a wire, and the wire flew out, and hit the plaintiff in her eye, from which blow she subsequently lost the use of the eye. Wires such as the one which caused the accident were liable to fly loose. There were spare wires prepared, and it was the custom of the weaver to put them in when one was discovered to be bad. The proof does not show that a break in the wire is usually dangerous. The machine must be at once stopped, so as to replace the broken wire; otherwise, the weaving will be bad. It does not require a loom fixer to put in a wire in the place of a broken wire. A loom fixer usually went around twice a day. He is not proven to have omitted the inspection on the day of the accident. When the loom is in motion, he can see a defect, such as caused the accident, no better than the weaver. It was the plaintiff’s duty to watch the fabric woven, and to watch the wires, and, if one broke, to stop the loom, and replace it with a good wire, which usually hung in front of the loom. The inspector usually did not put the wire into the loom. The weaver did. The inspector’s duty was to examine the wires before using. There is no proof that the wires were not good. There is proof that the wires will fly, in spite of the greatest care,—fly in an instant. The proof, therefore, fails to show any neglect upon the part of the master, and the rule that an employe takes the risks of the employment applies to her. The judgment and order denying a new trial should therefore be affirmed, with costs.