Brzostowski v. Coca-Cola Bottling Co.

Williams, P. J. and Henby, J. (dissenting).

.The infant plaintiff, with two other boys, without invitation or authority entered defendant’s bottling plant where one of defendant’s employees gave each of them a bottle of Coca-Cola. After the boys consumed the drinks, two of them put their empty bottles on the floor but the infant plaintiff walked about 12 or 15 feet to a *205conveying machine and placed his empty bottle on it. The bottle started to fall and he tried to catch it. His arm was caught and injured by the machine. One of the boys testified that on one previous occasion he and one or two other boyr had been given Coca-Cola outside the plant. There was no other testimony that Coca-Cola had been given away outside the plant. There was testimony that no children had ever entered the plant before the accident unless they were accompanied by adults or were on a company guided tour. There was no testimony that the machine was defective or dangerous. It was guarded by a railing.

The prevailing opinion is based upon the conclusion that the employee did not warn or caution the plaintiff against the dangers of the machine. The testimony in this respect is confused and unsatisfactory. It does not meet the standard of preponderance required of the plaintiff. The plaintiff did not testify in this respect; neither did the second boy, John Majka. Finally, in answering to leading and prompting by plaintiff’s attorney, the third boy, Bichard Koedus, made the amazing statement that the boys did not “ have any talk with this man [the employee] after or prior to receiving the coke.” The conclusion so strongly relied upon by the majority finds little or no support in the record. In any event there was no duty to warn against the obvious.

However, it is admitted in the prevailing opinion that the plaintiff was at best a bare licensee and that the duty of defendant toward him was to refrain from active or aErmative negligence. We ask, how does failure to warn become aErmative negligence?

The prevailing opinion is also founded upon the conclusion that this machine was a trap ”. Just how a large machine in full operation, clearly visible and in plain sight and hearing, becomes a trap ” is dificult for us to perceive. It does not become such because of propensities and proclivities [of children], the attractiveness of moving machinery to them ” (p. 200, prevailing opinion). Incidentally the case of Di Biase v. Ewart

Lake (228 App. Div. 407) relied upon by the majority for this

theory was a case which involved a plaintiff invitee and the general statements concerning duty of care contained in that case refer to duty as to invitees and not to licensees. The court in holding that a needle six inches long by which a four-year-old child’s eye was injured was not a dangerous instrument and in dismissing the complaint said (p. 410): “ It cannot be said that this needle is an instrument which in and of itself is inherently dangerous. There is nothing hidden or latent about it which

*206could cause injury. It is not a trap. It is not a hazardous agency like gunpowder, dynamite or nitroglycerine. Almost any article which is misused may become dangerous,”

Perhaps we need do little more in an effort to sustain our position than to refer to Connelly v. Carrig (244 N. Y. 81). That case is very similar to this except that there the plaintiff was in the preferred and advantageous position of an invitee. He entered defendant’s store and put his hands in a coffee grinder.

The court reversed a judgment for the plaintiff on the ground that no negligence on the part of the defendant had been shown, saying: ‘ ‘ There was no claim that it was of unusual construction or that its appearance was such that it would naturally attract a child of the age of the plaintiff. There was no proof that any usual or customary guards were omitted. The burden was upon the plaintiffs to prove that the grinder required a guard and that the failure to have such guard was the proximate cause of the injury to the infant ” (p, 83) and further(< I am unable to see, upon the foregoing statement of facts, upon what principle defendant could be held liable, He had a right to have the coffee grinder in his store, and he had a right to use it in connection with the business conducted therein. There was nothing to indicate that it was not adequately protected or that any protection was necessary ” (p. 84).

Certainly the machine in question in the present ease could not he classed as defective in a way not ascertainable upon reasonable inspection. See, also, Carbone v. Mackchill Realty Corp. (296 N. Y. 154, 158) and Keenan v. Lawyers Mtge. Co. (254 App. Div. 348, affd. 280 N. Y. 525). In both of the cases infant plaintiffs were given the benefit of the status of licensees.

We might say in closing that some of the cases cited in the majority opinion do not apply to licensees, but consider duties owed to invitees. (E.g., Collentine v. City of New York, 279 N. Y. 119, 124; Parnell v. Holland Furnace Co., 234 App. Div. 567, 570.)

The judgment and order appealed from should be affirmed,

Bastow and Oqldmax, JJ., concur with Halpkrx, J.; Williams, P. J., and Hlxbj, J,, dissent and vote to affirm in opinion.

Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event.