
    Sarah Flynn, Respondent, v. James G. McLoughlin, Surviving Partner of the Firm of McLoughlin Bros., Appellant.
    Second Department,
    June 9, 1916.
    Master and servant — negligence—injury to operator of embossing machine — amendment at trial to allege absence of guard — proof raising questions for jury — defenses — operation of machine without previous accident.
    Action by a servant against her master to recover damages for personal injuries received while operating a stamping machine used to emboss paper. It appeared that the descent of the stamping die was controlled by a foot treadle, and the plaintiff while endeavoring to detach a piece of paper which had become lodged in the die had her fingers crushed when the die descended unexpectedly.
    
      Held,, that although the plaintiff had not pleaded the failure of the defendant to place a guard upon the machine, it was proper for the court to permit an amendment at trial setting up the absence of a guard to conform to the proof, where the defendant made no claim of surprise, but objected solely upon the ground that the court had no power to permit the amendment.
    Such amendment did not set up a new cause of action for negligence in permitting the use of a defective and dangerous machine, but merely set out a further specification of negligence.
    . Held, further, that there being undisputed proof that it was practicable to guard such machine, the negligence of the defendant in this respect was a question for the jury.
    A recovery may be had even though the plaintiff had accidentally touched the treadle with her foot so as to release the die, for among the dangers against which the statute attempts to provide are those which may arise from an inadvertent or accidental act of the operator.
    Proof by the defendant that the machine had been used a great number of years -without accident was not an absolute defense, but was merely a fact for the consideration of the jury on the question of the master’s duty.
    
      Held, further, that a verdict for the plaintiff was not against the weight of evidence, and especially so, in view of the sharp question as to the credibility of witnesses.
    Appeal by the defendant, James Q-. McLoughlin, 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 2d day of June, 1915, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 26th day of May, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Louis O. Van Doren [Herrick McOlenthen and William A. Wagener with him on the brief], for the appellant.
    
      Martin T. Mantón, for the respondent.
   Care, J.:

This is a master and servant case to recover damages for a personal injury. The jury found a verdict for the plaintiff for $2,500 damages. She lost the end or first joints of three fingers of her right hand. The verdict was not excessive, and there is no claim by the appellant to that effect. A motion for a new trial was denied. From the judgment and order the defendant appeals. It is contended that the verdict was against the weight of evidence, that the plaintiff was guilty of contributory negligence, that the court erred in the admission of evidence, and that the court" should not, or could not, permit the plaintiff to amend her complaint at the trial, as it did. I will take up first the question as to the amendment permitted at the trial.

The accident happened while the plaintiff was at work on a stamping machine used for the manufacture of the backs of paper “valentines.” There were two dies, the upper one being described as the ‘c male, ” and the lower one the c ‘ female. ” The upper one descended, and the lower one rested stationary. The contact between the dies produced the embossing upon the paper. This paper came in sheets, and was laid upon a table attached to the machine, and fed into the machine between gauges set upon the table. The sheets were long enough for four “cuttings” between the dies. After each cutting the fingers of the operator approached more closely to the dies as the feeding went on. The upper die was brought down by pressure of the operator’s foot upon a treadle. In her complaint she pleaded that the machine was “ defective and dangerous,” and that the punch or die would fall “ without any pressure being exerted by the plaintiff upon the treadle.” At the trial plaintiff testified that, while she was at work upon the machine, some paper got lodged in the upper die, and that she stood up to detach it with her hand, and that while her right hand was between the dies, being used in detaching the paper, the upper die descended and caught the tips of her finger, crushing them against the lower or female die and severing them from her hand. She testified on her direct examination that she may have touched the treadle accidentally with her foot. So far as her testimony went, it established no negligence on the part of the defendant and disclosed no defect in the machine, unless it be a failure to “guard” the machine, as required generally by the Labor Law. (See ■ Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 81, as amd. by Laws of 1910, chap. 106). She had not pleaded a failure “to guard” as a specification of negligence. If she intended to give such proof, she should have pleaded such claim of negligence. (Martin v. Walker & Williams Mfg. Co., 122 App. Div. 280.) The plaintiff set out to prove that the machine was not guarded in such manner as to prevent the upper die from descending while the operator’s fingers were inserted in the space between the dies, and that it was practicable to use a guard for this purpose and that numbers of safety devices, for this purpose, were in use in the city of New York, the accident happening in Brooklyn. All this evidence was received over the objection and exception of the defendant, the trial court declaring that it would permit an amendment of the complaint setting up the absence of a “guard,” and such amendment was made a little Jater in the case. The defendant did not claim surprise, but resisted practically upon the ground that the trial court had not the power to permit an amendment at the trial. The amendment did not set up a new cause of action which was for negligence in permitting the use of a defective and dangerous machine, but it did, of course, set up a new or further specification of negligence. The trial court had power, in its discretion, to permit the amendment in the interests of justice. As the defendant was not “ surprised,” the discretion was exercised properly enough. After the amendment, the exceptions previously taken by the defendant on this point were no longer in the case. (General Electric Co. v. Nat. Contracting Co., 178 N. Y. 369.)

That the machine was ‘ ‘ unguarded ” must be conceded. That it was practicable to guard it was undisputed by any testimony on behalf of the defendant. Whether it was necessary to guard it, in the view of its particular ordinary use, was a question for the jury, to be decided in the light of such dangers as should be reasonably foreseen by the master as likely to result from its ordinary use. (Scott v. International Paper Co., 204 N. Y. 49; Wynkoop v. Ludlow Valve Mfg. Co., 196 id. 324; Bell v. Procter & Gamble Mfg. Co., Inc., 152 App. Div. 434.) Among the dangers against which the statute attempts to provide are those which may arise from an inadvertent or accidental act of the operator. (Kirchoff v. Creamery Supply Co., 148 Iowa, 508; Callopy v. Atwood, 105 Minn. 80.) The defendant gave evidence that in the use of this machine during a great number of years, no accident had happened upon it, but if such an accident was reasonably tobe anticipated, the fact that there had been no former accident was not a defense, but was a subject only for the jury’s consideration on the question of the master’s duty. (Cleveland v. N. J. S. Co., 125 N. Y. 299; Donnelly v. City of Rochester, 166 id. 315; Barrett v. Lake Ontario Beach Imp. Co., 174 id. 310.) While, in this case, the die would not have descended and crushed the fingers of the plaintiff if she had not, as she says she may have done, accidentally and inadvertently touched the treadle with her foot, yet the proofs as to the practicability of guarding the machine showed that there were safety devices or “ guards ” in ordinary use that would, when used, prevent the plaintiff’s hand from being caught between the dies, leaving out of consideration altogether the “ treadle lock ” which the trial court declared was “out of this case.” The defendant gave evidence to show that, in the ordinary use of its machine, it was not contemplated that the operator should ever insert her fingers in the space between the dies, and that sticks were furnished and used for the purpose of detaching such paper matter as might become adherent to the surface of the upper or “male” die. The plaintiff testified that she had no sticks at the time of the accident, and that they were used only on the fourth “cut,” to push the completed cutting from the face of the under die, and that it was not practicable to use them to remove enmeshed paper matter from the upper die. This question was presented very fully at the trial. The defendant produced its machine before the jury. They inspected it and saw it manipulated by various witnesses. In that respect they -had a much better opportunity to determine the facts correctly than has this court. We cannot say that their verdict was against the weight of evidence, and especially so in view of .the sharp question of the credibility of witnesses presented in the conflict of testimony as it appears in this record.

The judgment and order should be affirmed, with costs.

Present—Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Judgment and order unanimously affirmed, with costs. 
      
       Since amd. by Laws of 1913, chap. 386.— [Rep.
     