Majority
Headnote
1. Master and Servant—Duty of Master—Furnishing Safe Appliances.The evidence in this case, although somewhat conflicting upon the main issues, was amply sufficient to uphold the verdict of the jury; and, after a careful examination of the record, the only questions which seem to require any serious consideration upon this review are those which arise upon the defendant’s exceptions to certain portions of the judge’s charge. The learned court,
It is also contended that the learned judge erred in charging the jury “that the foreman of the defendant’s factory was, to all intents and purposes, the defendant.” We are unable to discover any error in this instruction. It is a rule of law now too well established to admit of any discussion that the duty which a master owes to a servant, of exercising proper care in. providing suitable machinery, is one which cannot be delegated. Corcoran v. Holbrook, 59 N. Y. 517 ; McGovern v. Railroad Co., 123 N. Y. 280 , 25 N. E. 373 . If, however, there were any doubt upon this subject, it was resolved by the evidence of the defendant’s superintendent himself, who, upon being called as a witness in behalf of the plaintiff, testified as follows: “I am foreman of the defendant at Orchard Park, and had charge of the factory when the plaintiff’s daughter was hurt, with full power to run things and direct the employés.”
“If the danger of this machine was so apparent that this child could see and comprehend that if she put her hand in there it would get hurt, no extent of instruction would save her from getting injured, because she could see the danger; and consequently you are to look at this machine as bearing upon the proposition as to whether she received proper instruction or not.”
And in another part of the charge it is further stated—■
“That if she did know about these knives; if they were so apparent, obvious, and visible that if she chose to put her hand in she would get it caught,—it would be negligence on her part.”
The only remaining exception which appears to demand any consideration is that which was taken to. the language of the charge respecting the necessity of placing suitable guards upon the machine in order to protect the hands of a person operating it; the contention being that it was left to the jury to say whether or not it was possible to have placed some additional safeguards about this machine, and that they were permitted to infer, if such were the case, that the omission to furnish them was negligence upon the part of the defendant. It is, of course, a familiar rule that a master is not bound to furnish the safest possible machinery or appliances for his employés to operate with. Hickey v. Taaffe, 105 N. Y. 26 , 12 N. E. 286 ; Harley v. Manufacturing Co., 142 N. Y. 31 , 36 N. E. 813 . And it is insisted that the learned court, in saying what it did with respect, to providing suitable guards for the defendant’s machine, permitted the jury to disregard this rule and adopt a different one. But here, again, is afforded an illustration of the impropriety of selecting a single sentence from a charge, and insisting that it represents what was actually said, without reference to the language which precedes or follows it. The learned court did state to the jury that:
“The proposition is, was it possible to put guards on this machine so it would protect the hands of the person operating it?”
And, did this embrace all that was said upon that subject, the defendant’s counsel would perhaps be warranted in insisting that an error was committed which would require reversal at our hands.
“As before stated, the master is not bound to furnish the best machinery, although the evidence tends to establish this machine is the best in use.”
And then, after stating the proposition complained of, he follows it up with this further instruction and explanation:
“Much testimony has been read as bearing upon the practicability of putting a guard on there. You are to take all that evidence into consideration, as well as ail the surroundings of this machine, and determine whether the master has discharged his duty in furnishing a reasonably safé and proper machine for this girl to perform her work upon. If you find this was guarded by all the means that were practicable, the defendant would have answered all the requirements, and the infant would then assume what risk of injury there was in its operation. If you find that the machine could have been more effectually guarded, and still possess its utility, you could find that the master has failed to discharge its duty in that regard.”
In view of the undisputed evidence in the case, we do not think that this statement of the rule is open to very serious criticism. The testimony of the defendant’s witnesses does not appear in extenso in the record, but in lieu thereof the appeal book contains a summary of the same, which presumably was agreed upon by counsel for the respective parties; and from this summary we learn that during the year 1891 the defendant, or its secretary, who had charge of the manufacturing, came to the conclusion that this machine needed to be more effectually guarded, and that the defendant was led, to consider the subject of guards upon this machine, by having arrived at this conclusion, and that it regarded it more or less dangerous because of the absence of guards in the year 1892; that the defendant had never tried a guard bolted to the upper part of the machine, marked “A”; and that, if a guard were constructed with the top thereof high enough above the cutter to allow room for the ears of corn to pop up and strike it, it would not interfere with the work of the machine. This evidence, it seems to us, is virtually an admission upon the part of the defendant that some additional means might and should have been adopted by the defendant in order to protect its employés from the risk which attended the operation of this machine. And, this being the case, we fail to see how the defendant was prejudiced by the instructions of the learned court in the language above quoted. The charge, in its entirety, was a full—and, we think, a fair—statement of the law applicable to the somewhat peculiar facts of this case, and we find no error therein which requires us to disturb the verdict reached by the jury. The judgment and order appealed from should therefore be affirmed, with costs.
Judgment and order affirmed, with costs. All concur.
Cases cited
- Burke v. Witherbee 98 N. Y. 562 at 565 p. 918
- Stringham v. Hilton 111 N. Y. 188 at 195, 18 p. 918
- Probst v. Delamater 100 N. Y. 266 p. 918
- Corcoran v. Holbrook 59 N. Y. 517 p. 918
- McGovern v. Central Vermont Railroad 123 N. Y. 280 p. 918
- Hickey v. Taaffe 105 N. Y. 26 p. 919
- Harley v. Buffalo Car Manufacturing Co. 142 N. Y. 31 at 36 p. 919