Schulz v. Rohe

This action was brought to recover for personal injuries received by plaintiff while working in the employment of defendants on a defective machine supplied by defendants. The complaint was dismissed at the close of the plaintiff’s testimony on the ground of contributory negligence. The machine in question was used in stuffing sausages, and was operated by steam power. It required the services of four men; two, called "fillers,” to fill the cylinders with chopped meat, and two, called “linkers,” to assist in filling the skins and removing. The defect in the machine was hidden, and its exact nature unknown. By reason of the imperfect working of the steam valve, due to some cause which was not apparent, the machine would start suddenly, and, without warning, push the piston head into the meat cylinder, where the fillers were sometimes obliged to put their hands; .and the fillers were, by reason of the defective condition of the machine, exposed to the danger of having their fingers crushed. The plaintiff’s regular employment was that of linker,—a position of no danger, even while the defect in the machiné existed. The plaintiff had orders,

Inasmuch as the complaint was dismissed upon the plaintiff’s case alone, all the evidence of the plaintiff and his witness must' be considered as true, and the inference most favorable to plaintiff must be drawn from the testimony. Flynn v. Harlow, (Super. N. Y.) 19 N. Y. Supp. 705 . The court below dismissed the complaint on the ground that the plaintiff was guilty of contributory negligence, ■ for the reason that he worked on the machine after he knew it was out of order. But the plaintiff swears that he thought the machinery had been fixed, and the inference to be drawn from the testimony indicates that he had reason so to think, inasmuch as he heard the foreman direct the engineer to fix it on the Sunday following the day on which the defect was discovered, and he had afterwards heard the engineer say that he would fix it on the Sunday named, and on the Monday following the said Sunday the machine seemed to work all right. Aside from the plaintiff’s uncontradicted testimony, it is a fair inference to be drawn from the testimony that plaintiff believed the machine had been mended; and, as we have said, the inference most favorable to plaintiff must be accepted. Furthermore, the plaintiff had a right to assume that the defendants had done their duty. To be sure, it may be urged that there is no positive testimony that the machinery was not properly repaired on the Sunday; but it is hardly possible to draw an inference from the evidence that the machine was properly repaired on the Sunday,, and that, with no fault of the defendants, it broke again on Tuesday, so that it was a risk incident to the business which plaintiff assumed on entering into the employment. The more reasonable inference is that, if repaired, it was not properly repaired, or it

It cannot be maintained that the complaint was properly dismissed for the reason that the accident was caused by the negligence of a fellow servant, i. e. the foreman or engineer, and that, therefore, the defendants are not liable. The inference to be drawn from the testimony is that the foreman was the representative of defendants, and orders given by him were equivalent to orders issued by defendants themselves, and that defendants were chargeable with knowledge of the defective condition of the machinery, inasmuch as their foreman was not only aware of it, but issued orders to have it remedied. McGarry v. Railroad Co., (Super. N. Y.) 18 N. Y. Supp. 195 ; McGovern v. Railroad Co., 123 N. Y 289 , 25 N. E.

We are of opinion that the learned court below erred in dismissing the complaint, and that the question of plaintiff’s contributory negligence should have been submitted to the jury. The judgment appealed from is reversed, and a new trial granted, with costs to appellant to abide the event.