
    John Borgeson, Respondent, v. The United States Projectile Company, Appellant.
    
      Negligence—dangerous machine—duty of the master—contributory negligence— excessive damages.
    
    In an action brought by a servant to recover damages resulting from injuries caused by the alleged negligence of the master, it appeared that the plaintiff was operating a machine called a hydraulic draw bench; that the machine was designed to make steel tubes by water pressure upon a piston rod which drew the tubes through a fixed die; that plaintiff had worked upon it but one day, having received no instructions, except that the foreman operated the machine, drew out one or more tubes by means of it, and then went away; that the motive power was controlled by valves, which in turn were controlled by a small wheel which the operator couldreach. While plaintiff was proceeding to put the die in position, which he held with his left hand up on the inside of the die head, while a helper screwed in the die from the outside, the piston head, which had a tendency to move (increased by reason of the fact that the valves leaked), stole noiselessly upon, and caught his hand, which he tried to pull out but could not, and then seized the wheel with his right, hand, turned it the wrong way and his hand was crushed.
    
      Held, that, whether the defendant was guilty of negligence in placing the plaintiff at work upon the machine without warning him of the dangers which existed in its operation, whether the dangers were open to ordinary observation and were discoverable by the plaintiff in the exercise of proper care, or whether they were latent, were proper questions for the jury, upon which their verdict was conclusive;
    That a verdict for §8,000 was excessive, and should be reduced to §5,000.
    Appeal by the defendant, The United States Projectile Company, from a judgment of the City Court of Brooklyn in favor of the plaintiff, entered in the office of the clerk of said court on the 5th day of April, 1895, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 8th day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes. " '
    
      William JV. Dyhmam,, for the appellant.
    
      Ghcvries J. Patterson, for the respondent.
   Hatch, J.:

The action arises out of the relation of master and servant. Defendant, among other things, manufactured steel tubes and employed in such manufacture a machine called a hydraulic draw < bench. Ib has a cylinder piston and piston rod, working Upon the same principle as a steam engine, the motive power being water . under pressure instead of steam. The stroke of the piston rod is horizontal and extends from the head of the cylinder to a die head, a distance of thirteen. and One-half feet. At the .outer end 'of the piston rod is a cross head or ram, with jaws. >. The die head is sta- . tionary and the tube is passed through the fixed die, the size -of the tube depending upon the size of the .die.- The head of the piston rod comes in contact "with the frame. of the die and there the jaws seize the piece of steel and draws out the tube from the. die. The pressure exerted by the machine is 2,500 pounds . to the square inch. This pressure is applied upon one side or the other of the piston head inside the cylinder, one side forcing it forward and the other -side drawing it back. The pressure of water in the cylinder is controlled by valves, and these, valves are controlled by a small wheel hear the die. head, so situated that' the operator of the machine can control the application of the .power with one hand and adjust the jaws of the ram to the end of the tube with the other. . Turning the wheel in one direction opens the inlet .and shuts.the exhaust. Turning it in the other reverses the .action, and -to close both inlet and exhaust the wheel must be at an exact central point between the extremes. No gouge is attached to show the point and the operator acquires the knowledge either through instruction or by; experience. If the wheel is not stopped at the precise center the piston rods will move in one direction or the other, the rapidity of the movement being dependent upon the pressure, but usually the movement is slow, as the wheel is near the center, and • is scarcely perceptible, • In regard to the particular machine, which is the present subject of examination, the testimony-of plaintiff tended tó establish that the machine was defective, caused by a leakage of water- from the valves, which defect rendered it impossible to- center the valves and stop the motion of the piston rods. The defect had always existed, was not visible to ordinary inspection and defendant' had notice of it. Prior to the '25th of January, 189Í, plaintiff was • employed at a machine in another part of defendant’s factory from where the hydraulic machine was situated, engaged in boring out holes in explosive shells. On the day. before he was directed by defendant to work upon the hydraulic machine and "began his service thereon on the twenty-fifth. He had not worked upon such a machine prior thereto and was given no instructions with respect to how the machine worked, except that the foreman of the defendant operated the machine and drew out one or more tubes before plaintiff commenced and then went away. No other instruction was imparted and no notice of the defect in the machine was given and plaintiff had no knowledge of its existence from any source. He began work upon the machine at seven in the morning and received an injury to his hand within two hours thereafter.

The injury was received in this wise: Plaintiff had drawn five or six tubes when he noticed that one was scratched; he called the foreman’s-attention to it; it was decided that the fault was in the die, and plaintiff was directed to remove the die and take it to the machine room and have it polished. He adjusted the wheel to stop the machine and supposed that it was stopped. "Whether the piston head was at the head of the machine- when plaintiff left it is not clear, nor is it important here, for wherever" it was, only the closest observation could detect that it was in motion, and it is doubtful if its motion was apparent to the naked eye. Plaintiff procured the die to be polished and returned to the machine. When he returned the piston head was about midway between the head'of the machine and the-die. Plaintiff, with the assistance of one Reilly, a helper about the machine, proceeded to place the die in position. In doing this he held the die in with his left hand on the inside of the die head,, while Reilly screwed in the die from the outside. While his hand was in this position, the piston head was stealing noiselessly upon it. Plaintiff says he first felt it upon his hand, then he tried to pull it out, could not, called out, seized the wheel with his right hand, turned it in the wrong way, and. his hand was crushed. While the evidence was in many respects conflicting, and that upon essential features of the case, the foregoing statement must be regarded as fully established by ■ the evidence-. The charge of the court fairly submitted to the jury the question whether defendant was guilty of negligence in placing plaintiff at work upon the machine without warning of the dangers which existed in its operation, without instructions as. to the difficulty or impossibility of exactly centering the valves, and without notice of the fact that the piston rods would not remain stationary. In this regard the case is brought within the principle of the decisión in (Gates v. State (128 N. Y. 221) which is controlling upon all the. principal points presented by this record. Whether defendant was guilty of negligence which contributed to the. injury, whether or not the dangers were open to' ordinary observation and discoverable by plaintiff in the exercise of proper care, or whether they were latent and not apparent, presented a question for the jury, and their finding thereon, is conclusive.

A more serious question arises .respecting the amount of the verdict. It was the left hand that was injured. The physicians who attended plaintiff testified that the middle finger was amputated; that-he has only partial motion of. the first and third fingers; 'that' .the joints are permanently -stiff, the power- of the. hand materially '-.affected, and much pain attended the injury. His services were worth tWenty-five dollars. Edward Miller, a physician called for the defendant, stated that he examined the hand eleven weeks after the injury/ found the middle finger of the left hand had been ■ amputated at the junction of the hand-with the finger, the first and third fingers had scars on the palmer surface and the tendons Which extend the fingers' were partially contracted, but the boheswere in good condition'and the fingers were not absolutely stiff at the time. He could flex his fingers and move ’them back and forth about half way; that continual motion of the fingers would havp overcome the ■stiffness* existing at the-trial. Plaintiff testified that he had-terrible pain for about two weeks, and for five weeks after he had his finger amputated; that -he has no pain in his hand now, except when he tries to straighten his fingers ; that he has continually tried the movement of his' fingers since his injury. The thumb and little finger were not injured.. He has been unable to work as before and cannot use the hand to advantage. We have recently had ■occasion to state the rule which governs in this class of causes and it would serve no useful purpose, to restate it. (De Wardener v. Met. Street Ry. Co. 1 Appi Div. 240.) Applying that rule to the evidence in this case we think the verdict excessive in amount. (Murray v. H. R. R. R. Co., 47 Barb. 196; Coppins v. N. Y. C. & H. R. R. R. Co., 48 Hun, 292.)

;Ohr conclusion, therefore, is that the judgment and order appealed from be reversed and a new trial ordered, unless plaintiff stipulates to reduce the judgment to the sum of $5,000, and if he so stipulates then the judgment and order appealed from is affirmed, without costs to either party in this court.

All concurred.

Judgment and order reversed and new trial, ordered, with costs to abide the event, unless plaintiff stipulates within twenty days to reduce the verdict to $5,000, in which case the judgment as reduced is affirmed, without , costs to either party.  