O'Connor v. Barker — 49 N.Y.S. 211

Majority

p. 211

(25 App. Div. 121.)

O’CONNOR v. BARKER et al.

(Supreme Court, Appellate Division, Second Department.

January 18, 1898.)

Headnote

Injury to Employe—Vice Principal.

Plaintiff, a girl about 15 years old, after being employed in defendant’s chocolate factory for a few days in preparing boxes, was instructed by the superintendent to do whatever the foreman should order her. The jury found that the latter directed her to put her hand through an opening into a grinding machine, and take out the chocolate that was inside. Upon doing so, one of her fingers was cut off by the machinery within. She had received no instructions as to the machine, and did not know of the danger. Held that, in respect to the duty of instructing her, the foreman was the alter ego of the master, and not a fellow servant of plaintiff.

Appeal from trial term.

Action by Nellie O’Connor, an infant, by Mary O’Connor, her guardian ad litem, against J. H. Barker & Oo. From a judgment

p. 212

for plaintiff entered on a verdict for $3,000, and from an order denying a new trial, defendants appeal.

Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

Herbert C. Smyth, for appellants.

James D. Bell, for respondent.

The plaintiff, a girl of 15 or 16 years of age, was injured on January 12,1895, while in the employ of the defendants, who had á factory in the city of New York for the grinding and manufacture of chocolate. She had been in the employ of the defendants five days, when she was set at work upon a grinding machine, called a “Melanger.” The machine was used for the purpose of grinding chocolate by means of a heavy, stone roller, which revolved inside of a circular, pan-shaped receptacle. Attached to the roller was an arm, to which were adjusted scrapers, which followed the wheel around, keeping the chocolate from • sides of the pan, and in the track of the wheel. At one side of the pan was an opening, with a door, which was to be closed when the machine was in operation. At intervals this door was opened, and the machine reversed, when the scrapers acted so as to throw the chocolate out through the opening. At and beneath the opening was a large, open spout, to receive the chocolate as it was, thrown out and passed into a pan underneath the spout. The plaintiff testified that her first work in the factory was in another apartment, preparing boxes for chocolate, where she worked until the day she was hurt. On that day she was sent by the superintendent to the floor below, where the machine was in operation, and was told to do whatever Julius Pearlstone, the foreman of that floor, ordered her to do. Pearlstone directed her to clear the sieve, which she did. She was then told by him to empty the chocolate from the pan into the barrel, after which she asked him what she would do next, and was told by him, “Put your hand inside the machine, and take the chocolate, that is inside, out.” She put her hand in, while kneeling, and was doing this when she felt something sharp passing over her hand. One of her fingers was taken off, and her hand otherwise injured. There is no evidence that she was instructed in any way by Pearlstone in the use of the machine. Reynolds, the superintendent of the factory, testified that the defendants had “promulgated” a rule, which he communicated to Pearlstone, that the machine should always be stopped before removing the chocolate from the inside; and there is evidence that this was customary, but there is no conclusive evidence that this order or custom was communicated to the plaintiff. Pearlstone denied telling the plaintiff to put her hand inside the machine and take the chocolate out, but there was other testimony both corroborating and contradicting the plaintiff’s testimony upon this subject. This raised a question of fact, in respect to which the court said:

“I charge yon 'that, if that was not told to her, there is nothing for you to consider in this case. If Julius did not tell- her that, then there is nothing for you to pass upon, and the defendant is entitled to a verdict.”

p. 213

The verdict establishes the fact that the plaintiff was instructed by Pearlstone to put her hand inside the machine to remove the chocolate. It may be a possible explanation of this extraordinary order that he intended, by the words “inside of the machine,” to refer to the large spout into which the chocolate was ejected from the machine, or that the order related to times when the machine was stopped. But, assuming either of these hypotheses, there was no evidence that the plaintiff was instructed not to put her hand into the opening while the machine was in operation. This department, in several similar cases, has held that it is proper to submit to the jury the question whether the defendant was guilty of negligence in placing a new operator at work upon a machine without warning him of danger which attended its operation. Borgeson v. Projectile Co., 2 App. Div. 57 , 37 N. Y. Supp. 458 ; Latorre v. Stamping Co., 9 App. Div. 145 , 41 N. Y. Supp. 99 ; Strauss v. Manufacturing Co. (not yet officially reported) 48 N. Y. Supp. 425 . The defendants’ counsel asked the court to charge “that if they find that Julius did, as a matter of fact, give this direction to the plaintiff,— to put her hand in the door,—that that was the direction of a fellow servant.” The court declined to charge as requested, adding, “It is for them to say whether it was or not.” The request raised the question whether Pearlstone was the alter ego of the defendants, or the co-servant of the plaintiff. There was evidence that the defendants had “promulgated” a rule that the man who had charge of a machine should always stop the same before cleaning it, and the promulgation appeared to be that this order was given to the superintendent of the factory, and was by him communicated to Pearlstone, but there is no evidence that Pearlstone instructed the plaintiff. The jury, under the charge of the court on that subject, has found by its verdict that Pearlstone directed the plaintiff to put her hand inside the machine to clean out the chocolate; and it is evident that the machine was in motion when she put her hand inside, as otherwise .she would not have recéived her injury. But it was the duty of Pearlstone to instruct the plaintiff as to the operation of the machine, and that she should not put her hand in while it was in motion. In this duty he was the alter ego of the master. His failure to instruct was the cause of the accident. It was held in Corcoran v. Holbrook, 59 N. Y. 520 , that:

“As to acts which a master or principal is bound to perform towards his employes, if he delegates the performance of them to an agent, the agent occupies the place of the master; and the latter is deemed present, and liable for the manner in which they are performed.”

The failure of Pearlstone to instruct the plaintiff was the cause of the accident, and in this duty he was the alter ego of the master, and not a co-servant of the plaintiff. The modification by the court, and the submission of the question to the jury, were more favorable to the defendants than the law requires.

1 have examined the other exceptions, and find in them no reversible error. The judgment must be affirmed, with costs. All concur.

Cases cited

Latorre v. Central Stamping Co. 9 App. Div. 145 N.Y. App. Div. 1896-10-06 p. 213