Stephen v. Stevens — 49 N.Y. St. Rep. 850

Majority

p. 850

Adam J. Stephen, by Guardian, App’lt, v. James B. Stevens et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed January 18, 1893.)

Headnote

1. Masteb and sebvant—Negligence.—Nonsuit.

Plaintiff, a boy of fifteen, while at work upon a buzz saw in defendants’ box factory, placed his hand within the guards which inclosed the saw to pull out a piece of board which had lodged at the side of the saw, and his fingers were cut off. No claim was made" that the saw was not in good condition or improperly guarded. Held, that a nonsuit was properly granted. ,

3. Same.

In such case, no inference of the negligence of defendants can be derived from the fact that they failed to observe the requirements pertaining to factories imposed by chap. 409, Laws of 1886.

Appeal by the plaintiff, Adam J. Stephen, an infant, by Frank M. Stephen, guardian ad litem, from a judgment entered in Monroe County, June 80, 1892, upon a nonsuit granted at the Monroe Circuit in June, 1892.

Horace L. Bennett, for app’lt; George F. Yeoman, for resp'ts.

This action was brought to recover damages for injuries received by the plaintiff upon a buzz saw while at work in the box factory of the defendants.

The plaintiff was, at the time of the infliction of the injuries, fifteen years and nine months old. He was at this time engaged in what is known as work upon a re-saw, that is to say, upon a large buzz saw three feet and nine inches in diameter, in re-slitting boards into thinner pieces. He had previously been employed by the defendants upon another and smaller buzz saw used for other purposes. His duties at the time of the accident were at the tail end, so to speak, of the buzz saw, and consisted in taking away

p. 851

the strips of lumber as they came to him. This saw was enclosed in a heavy frame with iron guards along the sides running nearly to the top of the saw on each side and extending longitudinally a little distance beyond the teeth of the saw. Other iron guards were provided designed to prevent contact with the teeth of the saw. Between the end guards and the side guards, through which the two parts of the piece of slitted board passed out upon an apron at the tail of the saw, there was a space of about two inches in width. The claim made in behalf of the plaintiff is, that he put his hand through this space, between the end guards and the side guards, to pull out "a piece of board which had lodged at the side of the saw. He says that the sawyer then in control of the saw told him to do this act. While attempting to pull out the lodged piece, he shoved the wood against the saw, where the teeth of the saw caught it and drew it back together with his hand upon the saw, which resulted in the cutting of his fingers. The plaintiff, though a lad of moderate intelligence, knew that a buzz saw was a dangerous thing, and that he would get cut if he put his band upon its teeth when in motion.

The case seems to us to be devoid of any evidence tending to show that the saw was not in good condition, or that it was not properly guarded to prevent accidents. Mor is any claim to the contrary made by the counsel for the appellant. Manifestly, therefore, there could not be any recovery against the defendants upon the ground of not furnishing reasonably safe machinery, and proper guards for this particularly dangerous piece of machinery.

Liability, however, is attempted to be made out against the defendants upon the ground that they failed to observe certain statutory requirements pertaining to factories. Reference is made to chap. 409, of the Laws of 1886, and the several amendments thereto, requiring employers to keep posted, in every room where children under sixteen years of age are employed, printed notices stating the hours of labor required, together with a list of the children and their names and ages, with their birth place and residence of all such children employed, and prohibiting the employment of such children without procuring and placing on file an affidavit made by the child’s parents, stating the age and date of birth of such child; and providing also that no such child who cannot reador write simple English sentences shall be employed in manufacturing establishments excepting during a vacation of the public schools in the place where such child resides.

Because some or all of these things were not observed by the defendants it is contended that a recovery may be had in this action, although counsel, fairly enough, concedes that the omission to observe these statutes is by no means conclusive evidence of negligence on the part of the employers. The prevailing fallacy of the position assumed by counsel is, that, in some way or another, the omission to observe these statutory requirements had a tendency to bring about the accident complained of. But this, manifestly, is not so. There is no relationship of cause and effect between the omission to observe these statutes and the infliction of the injuries upon the plaintiff. Had the defendants been guilty of not ob*

p. 852

serving any statutory requirements providing that buzz' saws or any other dangerous machinery shall be properly guarded and an injury resulted from the omission to place such guards around the dangerous machinery, a case might be made out where the omission to observe the statute led to the casualty. But not so with the provisions of the statute above mentioned. No inference can be derived that the omission to observe them contributed, in any respect, to the production of the plaintiff’s injuries. Such was the doctrine of the case in Briggs v. N. Y. Central & H. R. R. R. Co., 72 N. Y., 26 . The plaintiff’s injuries resulted from his own want of care. And, even if it be true, as it is contended, that a fellow workman told him to put his hand into the dangerous spot, the defendants would not be liable for the damages resulting from such fool-hardiness, for responsibilily for the accident was but divided between the plaintiff and a co-employee.

These views lead to an affirmance of the judgment

Judgment appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.