Gamble v. Hine — 19 N.Y. St. Rep. 874

Majority

p. 874

Frank A. Gamble, Resp’t, v. Edward Hine, App’lt.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

Master, and servant—Duty of master as to dangerous machinery— Conflicting evidence.

It is the duty of the master to instruct a servant who is of such tender years as not to fully appreciate the dangerous character of the machinery which he is put to operate; and a verdict for plaintiff will not be disturbed where the evidence is conflicting as to the fact of such instruction.

Appeal from a judgment for personal injuries, and from an order denying a motion for a new trial.

Ashton & Fromme, for resp’t; Edwin B. Smith, for app’lt.

When the plaintiff received the personal injuries which form the basis of this action, he was a lad of the age of fourteen years and nine months.

It was the duty of the defendants in employing'a boy of such tender years to work upon dangerous machinery to give him full and explicit instructions, not only to enable him to master the mechanism, but also to enable him to avoid injuries by unnecessarily exposing himself to danger. Had the defendants thus instructed him, they would have discharged the whole of tlie obligation which they, as employers, owed to the employee. The plaintiff was of sufficient years, manifestly, to have understood and appreciated fully, not only the dangerous character of the business in which he was employed, but also of sufficient intelligence to understand and apply in practice the admonitions of his .employers. Hence, it was of the primest importance in the trial of the action that the court and jury should be instructed by evidence upon the question, whether the defendants had placed before the boy the proper facts to have enabled him to appreciate the dangerous business in which he was employed.

Though the pressure upon the treadle of the machine while the operator's hand was beneath the weight, would, to an experienced eye, seem to be apparently dangerous, it did not necessarily convey to a boy of these tender years the admonition which it was the duty of the employers to make to him. Had the plaintiff been a person of experi

p. 875

ence aucl of mature years, the case before us would be essentially different, and the employer would doubtless be exempt from liability.

In the evidence it is shown on the one hand that the boy was put at work blindly, and without any instructions as to the dangerous character of the machinery, and of the means of avoiding the danger, and was left to feel his own way, without instruction or suggestion as to the danger, or how to protect himself against it, while the evidence in behalf of the defendant, particularly of his foreman and of two other persons, was to the effect that the plaintiff was given specific instructions, not only how to work the machine, but also as to the danger involved.

This presented a case of clear conflict of testimony which the court was in duty bound to submit to the jury.

After an examination of the evidence we do not feel justified in saying that the jury has rendered their verdict without evidence, or against the weight of the evidence, taking the interest of the parties and the circumstances of the case into account.

The judgment should be affirmed, with costs.

Bartlett, J., concurs.