Ogley v. Miles — 54 N.Y. St. Rep. 711

Majority

p. 711

Albert E. Ogley, Resp’t, v. William E. Miles et al., App’lts.

(Court of Appeals,

Filed October 17, 1893.)

Headnote

Master and servant—Negligence.

Where it appears in an action for injuries received while working at a machine, at which plaintiff claims that he was placed without information of the dangers to he apprehended therefrom, that the plaintiff has worked at similar machines long enough to know its nature and the dangers attending its use, and, therefore, was in the same position as to knowledge that he would have heen if defendant had iniormed him of its dangerous character, a motion for nonsuit should be granted.

Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff.

Theodore Bacon, for app’lts; Thomas Raines, for resp’t.

In this case we think the motion of the defendants for a non-suit should have been granted. At the time of the accident the plaintiff was nearly sixteen years of age. He was injured by a buzz saw which came in contact with his hand and cut off several of his fingers. He was engaged in sawing certain pieces of wood at defendants’ sash and blind factory, by means of that saw, and had been at that particular work at that place for a couple of days only. The claim is that he was placed at this work by defendants without any information having been given him, and while he was ignorant of the dangers to be apprehended from the machine, if not carefully and properly used.

It is unnecessary and would not be profitable to here recite the evidence in the case, but after a careful perusal of it we think it appears without contradiction and from the plaintiff’s own evidence that he knew the operations «of the machine; that he had had sufficient experience at other factories to enable him to, and that he did fully understand its "practical working, and he knew that he had to be careful in .regard to his hands coming in contact with the saw, for if they did, he knew they would be badly out. He had operated buzz «aws before he did this one; not for any length of time, but obviously and from his own testimony long enough to know the nature of the machine and the dangers attending its use. He was thus in the same position as to knowledge that he. would have been in had the defendants imparted to him oral information of the dangerous character of a

p. 712

buzz saw. Within the cases decided in this court, the plaintiff should have been non-suited. Hickey v. Taafe, 105 N. Y., 26 ; 6 St. Rep., 426 ; Buckley v. The Gutta Percha & Rubber Manufacturing Co., 113 N. Y., 540 ; 23 St. Rep., 618 , and cases cited.

There is nothing in the evidence as to the size of the plaintiff at the time of the accident which we regard as material to the case.

We think he failed to make out a causé of action against defendants, and the judgment in his favor must, therefore, be reversed and a new trial-granted, with costs to abide the event.

All concur.