Scialo v. Steffens

The defendant appeals from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial, in an action brought to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.

The decedent was a lad of about 16 years of age, who had been in the employ of the defendant for about six weeks prior to the happening of the accident out of which this action arises. It appears in evidence that Antonio Scialo, the intestate, was, during the time of his employment, engaged in work of a general character, such as washing presses, sweeping the floor, and sitting behind a bronzing machine in the workshop of the defendant. In that shop there was machinery operated by electricity. There was shafting through the shop, and belts were attached to that shafting. On the day of the accident the machinery on the fourth floor, on which the accident happened, was being operated by means of a belt which connected the shafting with a motor on the third floor, and there were belts running over the shafting to several machines. While the shafting was in motion, the defendant’s foreman attempted to repair a belt used to connect a machine on the floor with a revolving shaft overhead. The foreman and one Thomas Gavigan, an employé of the defendant, were engaged in that work; but, being unable to repair the belt without more assistance, the foreman sent for the plaintiff’s intestate for additional aid. The belt was not working over a pulley, but was detached therefrom. Gavigan held the belt below—that is, tin the floor—and the plaintiff's intestate was on a stepladder three or four feet below the shaft, holding the

There is nothing in the evidence to show how this accident occurred. There was only one witness examined on the trial by either party, and that was the boy Gavigan. Upon his testimony, we are unable to discover evidence of negligence on the part of the defendant. It is claimed that the shafting should have been guarded in accordance with the requirement of section 81 of the labor law (Laws 1897, p. 480, c. 415), and that its not being guarded is evidence of negligence. That section provides that:

“Whenever practicable, all machinery shall be provided with loose pulleys. All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery of other description, shall be properly guarded.”

This shafting was located about eight feet above the floor, and it has been held that as to shafting or machinery thus located the provision of the labor law does not apply. Dillon v. National Coal Tar Co., 181 N. Y. 215 , 73 N. E. 978 ; Glens Falls Portland Cement Co. v. Travellers’ Ins. Co., 162 N. Y. 399 , 56 N. E. 897 . Negligence is not to be imputed, as matter of law, therefore, because the shafting was not guarded, but it might be a question of fact whether such machinery should have been guarded or protected. Glens Falls Portland Cement Co. v. Travellers’ Ins. Co., supra. There was no evidence, however, in this case which would have authorized the submission of such a question of fact to the jury, for all we have upon the subject is the statement of the witness Gavigan that there was no danger whatever to the decedent in the situation in which he was placed at the time the accident occurred. That witness, in a statement he made which appears in the record in connection with his examination, said:

“I often did the same work he was doing. There Is absolutely no danger attached to it. * * * I made this statement that there was no danger about this work, to the effect that there was no danger and that the accident could not have happened unless he put his hands where they ought not to be, based upon my own experience in doing this kind of work. That is, as far as my experience is concerned, I thought there was not at the time.”

Nor was there evidence to sustain the claim that, under the section of the labor law cited, the defendant was guilty of negligence because he employed a lad less than 16 years of age in operating machinery. This lad was not employed to operate machinery. He was merely called upon to hold the belt while repairs were being made to it, and the only evidence we have upon the subject is that he was in a safe place while doing so.

But further than this, the case is destitute of proof which would allow the inference that the intestate was free from contributory negligence. No one can know how this accident occurred, or how

“Our conclusion herein may be briefly summarized in the statement that . to permit the submission of such a case as this to a jury, upon the question of decedent’s contributory negligence, would result, not merely in the extension of a rule which has already been stretched to the utmost degree, but in the abrogation of the rule itself.”

This case should not have been submitted to the jury, and the motion for a nonsuit should have been granted. The judgment and order should therefore' be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.