Ferguson v. Smith

Titus, Ch. J.

The defendants are owners of and operate a-planing mill in this city, having a variety of such machines- and appliances as are used in the business commonly carried on in such places.

The plaintiff, a boy fifteen years old, was given employment, in the mill. He was first set to' pulling boards off the planer, and, after a day and a half at this, -work, he was sent upstairs to work on a sandpaper machine; after working on-this machine for about ten days the defendants’ foreman, wanting some wedges cut, directed another employe, who was-perfectly familiar, with the use of the machine, to show the plaintiff how to use it. The machine was an ordinary buzz-saw, about ten inches in diameter, so adjusted under a table that it could be raised or lowered. The saw ran in a groove,, and projected just far enough above the bed of the "table to -cut through an inch board, -of which, the. wedges were made. An appliance called a jack was provided' for the purpose of pushing the- hoard onto the saw in the process of cutting. 'The boy says the man, Ernst, took him to -the machinp and told him what he had to do to cut the wedges. He. cut two ■or three, and then told the hoy to try ; "the boy cut two- or three wedges, and Ms instructor told Mm that was all right, ' ;and turned around, and went off, leaving the boy alone. He then -attempted to cut another, and the board and jack commenced to hob up and down, and the next thing he knew his fingers were cut off. He does not know, or at least does not tell more definitely, how the accident occurred." The saw was in plain'sight; he knew what it was for, and that it'was dangerous. Ho. other instruction was given him; he. had never worked around a machine before lie went into the.defendants’ employ, and had no previous knowledge tif how the machine was operated. .

The defendants now .claim that the plaintiff should, have, been nonsuited, on the ground that the master had discharged the duty which he owed the plaintiff to properly instruct Mm how to'operate the machine.

This presents the only question in the'case, as the défendants’ counsel makes no point that error Was committed by the trial judge in his rulings on the admission of evidence, or in his charge to the jury, or in his refusal to charge as requested by the defendants’ counsel.

The questions submitted to the jury were: “ "Whether or not the instruction given- to- the boy in the use of the machine was such as to..fairly,and adequately apprise the plaintiff of' the nature of the operation of the machine and of the dangers involved in it,” and whether the. plaintiff was himself guilty -of negligence, after, knowing how to operate the machme.

The principles of law involved in this case are elementary, and .are not 'seriously controverted. It is the duty of the master, before he puts his servant, of immature years, in charge -of dangerous machinery,, with which he is unacquainted, to instruct him how to operate it, and to give him such instruction as will cause him to fully understand and apju’eciat-e the. difficulties of his position and of the necessity for the exercise, of care and caution (Hickey v. Taaffe, 105 N. Y. 36), and when he is in possession of such information he assumes the risks of his employment, and if he meets with an accident he cannot recover. Be Graff v. N. Y. C. & H. R. R. R. Co. 76 N. Y. 125.

The defendants’ negligence, if any, is in riot giving the plaintiff that degree of instruction necessary to his full understanding of the danger attending the operation of the machine* and how it could he operated ‘so as to avoid such danger. Brennan v. Gordon, 118 N. Y. 489.

The plaintiff’s evidence shows that the instruction given, the boy was of the .most superficial character, and did not point out any of the dangers which were incident to the-.operation of the machine. The proof is that the saw would bind'and stick in wet and knotty lumber, and would jump up and down the way it did in this case; yet the plaintiff was entirely ignorant of these facts.

If the danger was open and apparent, even though the plaintiff was in experienced,'he could not recover for an injury from such apparent danger; but we do not think the facts in, this case present that question. The injury was received from the board bobbing up and throwing the plaintiff’s hand onto the saw, because there is no evidence from which the conclusion can be reached that the plaintiff carelessly put his hand onto the saw. .

It seems to us that the court properly submitted the question of the defendants’ negligence in not giving the boy proper instruction to the jury, and their finding, being supported by evidence, should not be disturbed.

The judgment and order appealed from should be affirmed* with costs.

Hatch, J., concurs..

Judgment and order affirmed, with costs.