Jacobson v. Cornelius — 24 N.Y. St. Rep. 360

Majority

p. 360

Isaac E. Jacobson, an Infant, by Guardian, App’lt, v. James Cornelius, Resp’t.

(Supreme Court, General Term, Second Department,

Filed May 13, 1889.)

Headnote

1. Negligence—Risks of employment—Duty of employee.

The general rule is that an employee assumes the risks of the employment. The master is not bound to furnish the very best and safest machines. The implement must be reasonably safe of its kind, and adapted to the employment.

2. Same—What not actionable negligence.

There was no counter shaft, and no fast and loose pulley, technically so called, which would have made it safer to connect and disconnect the power from the machine, where plaintiff was working and where the injuries were received: Meld, that the omission was not actionable negligence.

3. Appeal—When question as to merits not raised—Code Civ. Pro., § 999.

Where there is no exception to the ruling of the judge in dismissing the action, and no motion for a new trial on the minutes or a case made at a special term, according to Code Civil Procedure, section 999, no question as to merits can be raised on appeal. '

Appeal from a judgment rendered at circuit by Mr. Justice Cullen dismissing the complaint after hearing plaintiff's evidence. The action was brought to recover damages for personal injuries sustained by the plaintiff on the 19th day of October, 1887, while in the defendant’s employ. On that day the plaintiff was engaged in cutting bar iron or steel into lengths, for bolts, etc., at a saw which was operated by a power furnished by a belt running from a pulley on the saw to a main shaft in the middle of the

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ceiling and behind the plaintiff, the operator. This is what is known as direct shafting. The main shaft was continuously in operation, except when the power was shut down for the night. The plaintiff when directed to cut iron was obliged to put one end of a belt on the pulley at the bench, which was stationary, and the other end over a larger pulley in rapid motion at the main shaft by ascending a ladder. Sometimes the plaintiff was at one end of this belting and sometimes at the other end while it was being placed on the pulleys, as it required two persons to put on the belt. While the plaintiff was endeavoring to put on the belt on the pulley at the main shaft on the 19th day of October, 1887, he was caught by the belt and his left arm was torn off and his right arm broken in at least two places, and greatly mangled. The plaintiff made a claim against the defendant for the sum of §10,000 damages, alleging and claiming that the defendant had failed in his duty of providing good, safe and secure machinery and apparatus, and did furnish unsafe, defective and improperly constructed machinery, and of which he, the defendant, had notice, but the plaintiff had no notice.

Henry W. Bates, for app’lt; B. F. Tracy, for resp’t.

The evidence makes out no cause of action and the plaintiff was properly nonsuited. The plaintiff was about eighteen years of age, and had been employed about six months in the defendant’s machine shop. There was no proof tending to show that the machinery by which the plaintiff was injured was defective in such respects as would support an action for neglect against the master.

The general rule is that the employee assumes the risks of the employment. The master is ‘not bound to furnish the very best and safest machines. The implement must be reasonably safe of its kind and adapted to the employment.

The only defect alleged or proven by the evidence is that the machine by which plaintiff was in juried, could be put in and out of gear in a better manner.

There was no counter shaft and no fast and loose pulley, technically so called, which would have made it safer to connect and disconnect the power from the machine. This omission was not actionable negligence. Lafflin v. Buffalo, etc., R. R. 106 N. Y., 136 ; 8 N. Y. State Rep., 596.

This appeal does not present the merits. There was no exception to the ruling of the judge in dismissing the action and there was no motion for a new trial on the minutes or on a case made at a special term, according to section 999 Code of Civil Procedure. No question as to merits can

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therefore be raised upon this appeal. Third Avenue R. R. v. Ebling, 100 N. Y., 98 .

The judgment should be affirmed, with costs.

All concur.