Borgeson v. United States Projectile Co.

in boring out holes in explosive shells. Qn the day before, he was directed by defendant to work upon the hydraulic machine, and began his service thereon on the 25th. He had not worked upon such a machine prior thereto, and was given no instructions with respect to how the machine worked, except that the foreman of the defendant operated the machine, and drew out one or more tubes, before plaintiff commenced, and then went away. No other instruction was imparted, and no notice of the defect in the machine was given; and plaintiff had no knowledge of its existence, from any source. He began work upon the machine at seven in the morning, and received an injury to his hand within two hours thereafter. The injury was received in this wise: Plaintiff had drawn five or six tubes, when he noticed that one was scratched. He called the forman’s attention to it. It was decided that the fault was in the die, and plaintiff was directed to remove the die, and take it to the machine room and have it polished. He adjusted the wheel to stop the machine,'and supposed that it was stopped. Whether the piston head was at the head of the machine when plaintiff left it is not clear, nor is it important here; for, wherever it was, only the closest observation could detect that it was in motion, and it is doubtful if its motion was apparent to the naked eye. Plaintiff procured the die to be polished and returned to the machine. When he returned the piston head was about midway between the head of the machine and the die. Plaintiff, with the assistance of one Reilly, a helper about the machine, proceeded to place the die in position. In doing this he held the die in with his left hand on the inside of the die head, while Reilly screwed in the die from the outside. While his hand was in this position, the piston head was stealing noiselessly upon in. Plaintiff says he first felt it upon his hand, then he tried to pdll it out, could not, called out', seized the wheel with his right hand, turned it in the wrong way, and his hand was crushed. While the evidence was in -many respects conflicting, and that upon essential features of the case, the foregoing statement must be regarded as full established by the evidence. The charge of court fairly submitted to the jury the question whether defendant was guilty of negligence in placing plaintiff at work upon the machine Without warning of the dangers which existed in its operation, without instructions as to the difficulty or impossibility of exactly centering the valves, and without notice of the fact that the piston rods would not remain stationary. In this regard the case is brought within the principle of the decision is Gates v. State, 128 N. Y. 221 ; 40 St. Rep. 87 , which is controlling upon all the principal points presented by this record. Whether defendant was guilty of negligence which contributed to the injury; whether or not the dangers were open to ordinary observation, and discoverable by plaintiff in the exercise of proper care; or whether they were latent, and not apparent,—presented a question for the jury, and their finding thereon is conclusive.

A more serious question arises respecting the amount of the verdict. It was the left hand that was injured. The physicians

who attended plaintiff testified' that the naiddle finger was amputed ; tliat he has only partial motion of the first and third fingers; that the joints are permanently stiff, the power- of the hand materially affected, and much pain attended the injury. His services were worth $25. Edward Miller, a physician called for the defendant, stated: That he examined the hand eleven weeks after the-injury, and found the middle finger of the left hand had been amputated at the junction of the hand with the finger, the first and third fingers had scars on the palms or surface, and the tendons which extend the fingers were partially contracted; but the bones were in good condition, and the fingers were not absolutely stiff, at the time. He could flex his fingers, and move them back and forth about half way. That continual motion of the fingers would have overcome the stiffness existing at the trial. Plaintiff testified that he had terrible pain for about two weeks, and for five weeks after he had his finger amputated ; that he has no pain in his hand now, except when he tries to straighten his fingers ; that he has continually tried the movement of his fingers since his injury. The thumb and little finger were not injured. He has been unable to work as before, and cannot use the hand to advantage. We have recently had occasion to state the rule which governs in this class of causes, and it would serve no useful purpose to restate it. De Wardener v. Railway Co. (Sup.) 37 N. Y. Supp. 133 (not officially reported). Applying that rule to the evidence in this case, we think the verdict excessive in amount. Murray v. Railroad Co., 47 Barb. 196 ; Coppins v. N. Y. C. & H. R. Railroad Co., 48 Hun, 292 ; 17 St. Rep. 916 .

Our conclusion, therefore, is that the judgment and order appealed from be reversed, and a new trial ordered, unless plaintiff stipulates to reduce the judgment to the sum of $5,000; and, if, he so stipulates, then the judgment and order appealed from are affirmed, without costs to either party in this court.

All concur.