
    John Garvey, Respondent, v. New York and Cuba Mail Steamship Company, Appellant.
    
      ..Negligence^ injury to a.steveclore from catching his hand in'the rope of a steam ' .. ... . ■ winch.
    
    Injuries sustained by a stevedore, of several years experience in his occupation, from catching his band in the sling or rope of á steam winch so that liis hand was drawn into the pulley at the end of the crane and was crushed, considered by the court, under the evidence, not to have been caused through any neglect of liis employer, but by the carelessness of a fellow-servant or by his own . 'negligence. - ■ ' '
    Appeal by the defendant, the Hew York and Cuba Mail Steamship 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' l'Otli day of June, 1897, upon the verdict of a jury "for $2,500, and also from an order entered in said clerk’s office on the 10th day of June, 1897, denying the defendant’s motion for a new .trial made upon the minutes.
    
      Charles C. Nadal [Edward P. Mowton with him on the brief], for the appellant.
    E. J. McCrossin, for the respondent.
   Woodward, J.:

The plaintiff in tins, action.was a stevedore and had been .in the .employ of .the defendant for seven months, and had been doing, the same bind of work for several years. On the 19th day of April, 1894, while engaged with'others in hoisting bags of coffee from the hold of the steamship Seneca by means of a winch or hoisting engine, his hand became entangled in a rope used as a sling and it Avas draAvn into the pulley at the end of' the crane and so severely crushed that it became necessary to amputate two of his fingers. It Avas contended on behalf of the plaintiff that the accident was due to- some neglect on the part of the defendant “ in- that its' said crane and the apparatus thereto belongingwere in a defective, insecure and dangerous condition, all-of which, upon information and belief, was Avell known to the defendant, and-in that it carelessly and negligently placed this plaintiff at a perilous and hazardous employment without informing him of such perils and hazards.” On the trial the plaintiff testified that he had been in the employ of the defendant .on the 19th day of April, 1894, and that “ we were lifting coffee out from the ship by means of the tackle, taking the drafts that came up, lifting them right on the deck, and my business was to unhook the fall and take the coffee off, put it back to the hold, hand over hand, that Avay (indicating), and the moment I had my hands on, pulling it doAvn that way ; the engine started suddenly, and as the engine started I hollered to the engineer — it was about that distance — four or five feet, Come back, come' back, you'are taking my hand in,’ and I saAv the man myself trying all his endeavors to push the levpr down and stop the machine. He could not stop it that time and I was suspended in the air hanging from the hatch, and my partner — all he had to do was to pull me off otherwise when my fingers Avent off, I would fall right through the hatch and smash myself to pieces.”

It was proven by íavó witnesses for the defendant, and practically by one of the witnesses for the plaintiff, that the way to start the winch and keep it in motion was by pushing the leA^er down; that it could move by the force of the engine only in one direction, and this only upon the affirmative action of the engineer, and the plaintiff testifies .that I saw the man myself trying all his endeavors to push the lever doAvn and stop the machine.” There was some testimony introduced, under objections, tending to show that the machine had not been in perfect working order on the morning of the day on which the accident occurred, hut the facts stated were not sufficient to justify the conclusion that a piece of. machinery which can he put in motion only by the affirmative- action of the engineer could be so out of repair that it would, of its own motion, start up-suddenly; that would be reversing the whole course of natural law,.' and is not to- be credited except upon the most positive and direct evidence of specific instances of such perversity on the part of things inanimate. Machinery winch is out of repair often refuses-to¡ move when the -impulse -is given,, but the idea of its starting without the aid of the engineer is absurd, and especially when the plain.tiff, who was shown to be familiar with' the work, testifies that he saw the engineer doing the very thing that was necessary to do topxit the winch in operation. ■

It is a principle too well settled to require any argument at this-time that a person of mature years entering any employment accepts the-risks incident to such employment, and that the employer is-charged with no higher duty than to provide machinery arid appliances suitable for the work and to keep them in -a state of repair -which shall not increase the hazards of such occupation. The-plaintiff in the ease at bar had been employed -in the discharging-. and loading of vessels for a series of years. He knew the dangers-? incident to the work which he was called upon to perform, and it was his duty to exercise that care and pradénce necessary to preserve himself from harm in the ordinary course of the work. As-was said by Judge Pabkeb in delivering the opinion of the court in the case of Dingley v. Star Knitting Co. (134 N. Y. 552): “ The machine was such as was in ordinary use, and for aught the evidence discloses,, the best -known; it was situated with reference to-the shafting as- were the other machines in that room, and in other mills; no special defect in its situation or construction was pointed ou't;. no one pretended to be able to assign with certainty the -cause-of the transfer of the belt from the loose’.to the tight pulley, if it was in fact so transferred, but, because the machine started on this and .three other occasions, it is insisted that the jury had a right to infer that there existed a defect of some kind which the defendant was negligent in not providing against, notwithstanding the precise defect Was then and has since remained unknown.

,“ In other words, that the jufyunay find that the defendant-failed in the discharge of. his duty towards his employee by omitting to provide against an alleged defect in a machine in ordinary use, which so far no one has been able to point out. A proposition which, if sustained, extends the liability of the master to hig servant far beyond its present boundaries, and would be without reason to support it.”

Almost equally strong is the language of the court, speaking through Judge Roger, in the case of Dobbins v. Brown (119 N. Y. 188). This was a case of an accident in a mine, in which the allegations of the plaintiff were in many respects similar to those of the case at bar. The court say that the evidence is not sufficient to support the allegations of the complaint, and comment as follows “ There was no evidence but that apparatus and appliances, similar to the one in question, were generally in use in deep shafts for mining purposes in this country, and in some instances it appeared they were required to be used by the statutes of the states in which they were employed. Ho proof was given of any defect in the plan or structure of the machinery or appliances constituting the apparatus used in elevating and lowering the bucket in question, or that it was not well constructed of good materials- in accordance with the plans generally followed in manufacturing similar apparatus.”

In the cáse at bar the winch was such as is in ordinary use; there was no evidence that it was out of repair, but, on the contrary, the testimony of the plaintiff, as well as that of all the witnesses who in any manner touched upon this question, shows that the machine responded to the action of the engineer with reasonable promptness,, and that the accident was due, not to any neglect on the part of the defendant,, but to the carelessness of a fellow-servant, or to plaintiff’s own negligence in not taking those precautions in handling a new rope which were necessary to prevent accidents.

For these reasons the judgment of the trial court is reversed and a new trial granted.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  