
    Morris Strauss, Respondent, v. The Haberman Manufacturing Company, Appellant.
    . Negligence—foreman rendering the sliding platform of a stamping machine stationary —failure to instruct the operator that the machine was thereby made more-• dangerous.
    
    In an action brought to recover damages for injuries resulting to the plaintiff while employed in the defendant’s factory, the evidence warranted the jury-in finding thát soon after the foreman of the factory had set the plaintiff, who had . been employed in the factory only two or three days, at work upon a stamping machine, the lower die of which was attached' to a sliding platform designed •to permit the operator to slide the lower die from under the upper die and thus to remove the stamped article, without incurring the risk of having the upper die descend upon his fingers, the foreman took out the sliding platform and in. replacing it fastened it into the machine in such- a way as to prevent it from, being drawn out, without informing the employee of the increased danger of operating the machine resulting from this change, and that some few moments afterward the employee pressed the treadle for the purpose of causing the upper die to descend once, instead of which the upper die, because of the unhooking of a spring designed to hold the treadle up, descended three or four times, cutting off the employee’s fingers.
    
      Held, that a verdict in favor of the plaintiff should be sustained;
    That the acts of the foreman in fastening the sliding platform, and his omission to give the plaintiff suitable warning of the increased dangers attending the-operation of the machine when the sliding platform was so fastened, were those-of the master.
    Appeal by the defendant, The Haberman Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    
      Robert Thorne [Frank V. Johnson with him on the brief], for the appellant.
    
      E. J. McCrossin, for the respondent.
   Goodrich, P. J.:

The action is brought to recover damages for personal injuries sustained by the plaintiff while working in the defendant’s factory in November, 1895. The plaintiff was operating a steam stamping machine used for making small tin covers, and while so engaged his hand was caught and three fingers were cut off. The plaintiff had been at work in the factory only two'or three days when he was set at work on this machine by Tice, the. defendant’s foreman. The machine has two corresponding dies, male and female. The upper die is set on the bottom of a cylinder, which has a vertical motion, coming down upon the lower die, on which the tin disc is placed for stamping. The lower die is screwed on to a sliding platform, to which a handle is attached, and which may be drawn entirely out of the range of the movement of the upper die, so that the finished disc may be removed with perfect safety. When the press is in use a leather belt passes over a large wheel at the back of the machine and keeps the wheel constantly revolving. There is, however, no continuous connection between this wheel and the cylinder, in order to operate which a treadle or lever at the botfom of the machine must be depressed, by the foot or otherwise. The operator places his foot upon the treadle, and a single pressure causes the upper die to descend in a single operation of falling and rising during a single revolution of the wheel. A wire coil spring is attached by hooks to the treadle and to a rod above, and this lifts and holds the treadle up, thus preventing the movement of the upper die whenever the foot pressure on the treadle is removed. As long as the pressure on the treadle is kept up, the die continues to move up and down ; and the same result follows when the spring is unhooked.

The plaintiff, when first put to work, received some instructions from the foreman as to the operation of the machine, but soon after he began his work, for some reason or other, the foreman took away the sliding plate to which the lower die was attached, and when he-replaced 'it, fastened it into the machine with wire in such a way that it could not be drawn out in order to remove the disc from the lower die after stamping. The plaintiff had only worked a few moments when the upper die came down three or four times in succession, catching his hand between the dies and cutting off three fingers. There is evidence tending to show that he inserted the disc and had placed his foot on the treadle for the first of the three or four descents and had removed his foot, and that the subsequent descents resulted from the unhooking of the spring, which, as before stated, had the same effect as the removal of the foot pressure on the treadle.

The duty of the defendant to provide a safe and suitable machine for the plaintiff and to instruct him in its operation is not disputed; but the defendant claims that it fulfilled both duties, and that the accident resulted, from a sudden disarrangement of the machine, which was a detail of the operation, for which it is not responsible, and that neither it nor its foreman had any knowledge or notice of that or of any previous defect. The difficulty witli this contention is that, while the machine as originally constructed is shown to have been suitable and proper,.there was evidence tending to show that the defendant’s foreman, by wiring into place the table designed to be drawn out when each disc was stamped, for the purpose of removing it, prevented the plaintiff from using the means of sáfe operation which the manufacturer had provided. This was denied by the foreman, but the question of fact was submitted to the jury. If it had appeared without contradiction that the foreman warned the plaintiff of the new and additional danger, even to a practiced workman, it might be said that the plaintiff would have been.held to have taken the risk of his employment. We have, however, the case of a comparatively unskilled workman thrust into a new and unusual danger, of which he claims to have been ignorant. The evidence justified the submission of this question to the jury and their find^ ing that the master had not furnished á safe and suitable machine to its servant.

Neither can it be said that the foreman was a fellow-servant of the .plaintiff. The case of Loughlin v. State of New York (105 N. Y. 159) points out the distinction between acts in which a foreman is the alter ego of the master, and cases .where the negligence complained of is not the personal act or omission of the master, but-of a co-servant, holding that it turns upon the character of the act or omission. If the co-servant whose negligence caused the injury was at the time representing the master in doing the master’s duty, the latter is liableif, on the other hand, the co-servant was simply performing the work of a servant, in his character as such, the mas-, ter is not. liable. (See, also, Brennan v. Gordon, 118 N. Y. 494.)

Applying this principle of these authorities to the case at bar, the foreman, Tice, in repairing or altering the machine by wiring-in the. table, and- in the matter of giving suitable instructions to the plaintiff after such alteration, was performing the duty of the master as his alter ego, and for neglect in either respect the master would be liable. (Fox v. Le Comte, 2 App. Div. 63; affd. on the opinion of this court by the Court of Appeals, 153 N. Y. 680.)

In two similar cases this Appellate Division lias held that the court properly submitted to the jury the question whether the defendant was guilty of negligence in placing the plaintiff at work upon a machine without warning him of the dangers which attended its operation. (Borgeson v. United States Projectile Co., 2 App. Div. 57; Latorre v. Central Stamping Co., 9 id. 145.)

The learned justice, at the trial of this action, fairly submitted to the jury the questions to which we have referred, and the jury has found these questions in favor of the plaintiff. We sée no reason to disturb the judgment. We have carefully examined the exceptions and do not see that any error which operated to the injury of the defendant .has been committed.

The judgment is affirmed.

Judgment and order unanimously affirmed, with costs.  