Oszkoscil v. Eagle Pencil Co. — 57 N.Y. Super. Ct. 217

Majority

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HELEN JULIA OSZKOSCIL, by Guardian, etc., Appellant, v. THE EAGLE PENCIL COMPANY, Respondent.

Headnote

Negligence case.—Absence of specific instructions by employer to employee, when not ground of liability.—Minors, principles as to duty of employer towards.

Where all the parts of the machinery and their movements are fully exposed to view and the employee has been engaged thereon for some time, the absence of specific instructions by the employer to the employee not to permit her hand to be caught between the moving machinery, constitutes no ground of liability.

The principles laid down in Hickey v. Taaffe, 105 N. Y. p. 26, as to the general rule of law upon the subject of employees not being altered by the bare fact that an employee is a minor, applies.

Before Sedgwick, Ch. J., and Freedman, J.

Decided June 28, 1889.

Appeal by plaintiff from judgment entered upon a dismissal of the complaint at the trial.

In addition to the facts stated in the opinion, it appeared on the trial that the plaintiff was of an age to appreciate and to have full knowledge of the danger of permitting her hand to be caught between the moving machinery, and was competent to perform the duty required of her.

Hays & Greenbaum, attorneys, and Daniel P. Hays, of counsel, for appellant, argued:—

I. The court erred in refusing to submit the questions of fact to the jury and dismissing the complaint. It has been well settled that, in employing young persons, the employer is bound to take notice of their age and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate and to which they ought not to be exposed. This is a duty which cannot be delegated,

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and any failure to perform it leaves the master subject to the same liability, with respect to such risks, as if the child were not a servant. Sherman & Redfield on Negligence, sec. 219; Buckley v. Gutta Percha Mfg. Co., 41 Hun, 450 ; Coombs v. New Bedford Cordage Co., 102 Mass. 572 ; Grizzle v. Frost, 3 Fost and F. 622; Fanter v. Clark, 15 Ill. App. 470 ; Hickey v. Taaffe, 105 N. Y. 36 ; Sullivan v. India Mfg. Co., 113 Mass. 396 at 399; Finnerty v. Prentice, 75 N. Y. 615 , MS. The rule invoked by the appellant is that laid down in the above cases. The plaintiff was an infant, 15 years of age, not accustomed to working on machinery, just three months out of school, was given no instructions as to the dangers incident to cleaning or operating the machine, but, on the contrary, was directed to clean it while it was in motion. The machine was one operated by steam, and had many wheels and rollers moving quickly. She had only been employed on it one week. She was attending to her work, and not looking at any other place. No one told her it was dangerous to clean this machine while in motion. Under the above decisions, it was clearly a question for the jury to say whether it was dangerous to clean the machine while in motion, whether proper instructions were given to plaintiff, or whether she was old enough to appreciate the dangers of the occupation, and whether she was guilty of contributory negligence.

II. The case of Hickey v. Taaffe, 105 N. Y. 36 , which has been cited above as an authority in favor of plaintiffs position, is also relied upon by defendant to support the nonsuit. Although in that case the court held that the girl could not recover, it recognized the principle contended for by us, and affirmed the dismissal of the complaint upon the ground that while the plaintiff had received no instructions as to the dangers of the machine, she had acquired the information from the best of all teach

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ers—practical experience. In that case the plaintiff was fourteen years and four months old, and had been employed in the laundry nearly four months, from April 1st to July '26th. She had fed the machine for six weeks. During that -time defendant had talked to her about her hair being too long, and told her to keep it up in front or it might get caught in the rollers and be burned off. She knew the rollers were so close together that they would, if they caught her hair, either draw it out of her forehead or burn it off, and she knew this did once occur. She knew also that the rollers were hot enough to iron a collar and that there was a pressure of one roller upon the other. She also knew that if her hand was caught between the rollers it would be burned and crushed, and she knew that other girls had had their hair caught and burned off on the machine. She knew that the upper roller was weighed down to the lower roller by weights. It can readily be seen that the plaintiff in that case knew all about the machine that the defendant could have told her. The law did not, therefore, require the defendant to go through the idle ceremony of pointing out dangers of which she was aware. In the case at bar the plaintiff had no knowledge of the dangers, she had had no experience such as the plaintiff in Hickey v. Taaffe had received, but she was injured after working a week at the machine, and while performing her work in the manner in which she had been directed to perform it by defendant’s foreman.

Stine & Caiman, attorneys and of counsel, for respondent, argued.

I. Plaintiff was engaged in the room where she received the injury, fully twelve weeks before the accident ; during all that period, this machine was used by other girls there, and no one else was hurt

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there ; during all the time plaintiff was there she never heard of any one being hurt by this machine. It is clear from plaintiff’s testimony throughout, that she had seen this machine operated during all the time that she was there, and that it was a machine of very simple construction, and that when she was placed at the machine to attend to it, her duties were of the very simplest and safest kind. It was a machine which had been in that factory for years, and as plaintiff herself testified, she never heard of any one else being hurt. Where, then, is there any negligence on the part of the defendant ? The plaintiff testifies, that she was ordered to clean the machine while in motion ; if this be true, as must be assumed in the absence of evidence by the defendant, this is no proof of negligence. There is nothing in the whole case, not a word, not an iota of evidence that the cleaning of this machine in motion was dangerous. This case is as closely analogous to that of Hickey v. Taaffe, in 105 N. Y. 26 , as any two cases can be. In that case, as in this, there was a girl of just about the same age (in fact Miss Hickey was about six or seven months younger than the plaintiff herein), who was employed upon machinery, which in itself was not dangerous, but which, as all machinery, can become dangerous if handled negligently. In that case even, it had happened, as appears from the testimony therein, that another girl had been injured by carelessness. This did not appear in this case. In that case, the court holds that plaintiff could not recover.

All the plaintiff in this case had to do, all her duties, were connected with those parts of the machine which were in clear view of plaintiff all the time. And as the court said in Hickey v. Taaffe, on pages 35 and 36, there is no doubt that an employee in accepting services with a knowledge of the character and position of the machinery, the dangers

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of which are apparent, and from which he might be liable to receive injury, assumes the risks incident to the employment and cannot call upon the defendant to make alterations to secure greater safety. A mere inspection of the machine will show that there is no possibility of any machine operated by steam being safer or more easily handled than the one in question here.

II. In Hickey v. Taaffe, it is held that, she being of an age to appreciate and having full knowledge of the danger and at the same time being competent to perform the duty demanded from her, the fact that she was a minor, does not alter the general rule of law upon this subject of employees taking upon themselves the risks which are patent and incident to the employment.

No evidence was adduced at the trial of any defect or want of repair or secret danger in the machinery complained of. The machinery appeared to have been in every way suitable and adequate for the purposes for which it was used. Whatever danger there was arose from coming into contact with some one of the parts while in motion. But all the parts of the machinery, and their movements, were fully exposed to view. Under these circumstances, and the plaintiff having been engaged upon said machinery for some time, a specific instruction by the employer to the plaintiff not to permit her hand to be caught between the moving machinery, was unnecessary, and the absence of such an instruction constitutes no ground of liability. An employee in accepting or continuing in service with a knowledge of the character and position of the machinery, the dangers of which are apparent, and from which he may be liable to receive injury, assumes the risks incident to the employment, and the fact that he is a minor, does

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not change the rule. Upon the principle laid down and enforced in Hickey v. Taaffe, 105 N. Y. 36 . the complaint was properly dismissed.

The judgment should be affirmed with costs. •

Sedgwick, Ch. J., concurred.

Cases cited

Hickey v. Taaffe 105 N. Y. 26 N.Y. 1887-03-08 p. 220