
    Rose Fish, an Infant, by John Fish, Her Guardian ad Litem, Respondent, v. Utica Steam and Mohawk Valley Cotton Mills, Appellant.
    Fourth Department,
    November, 1905.
    Negligence — injury to hand by cog wheels — verdict against weight of evidence — minority of plaintiff directed to clean machinery in motion is only some evidence of particular negligence alleged — when decision of former appeal not controlling on question of negligence,
    The plaintiff, engaged in cleaning moving machinery with waste, was injured by having her hand caught-in'the.cogs or gear of the machine! The gears were inclosed in-a box which had a cover over it, and meshed together in the box below the cover. It was conceded that the wheels revolved upwardly and out- - wardly. Plaintiff claimed the cover of the box was defective and came off or was pushed off, leaving the cogs and gear exposed, and that her hand was drawn down through the opening into the cogs by reason of the waste which she was using getting caught. The justice in his charge to the jury made it clear that the cover was not defective; that the accident did not occur by the hand being drawn in from above through the uncovered opening, but by being drawn in from below the wheels and gearing.
    When the court, under the above circumstances, has further charged the jury that the fact that plaintiff was a minor at the time she claimed she was directed or permitted to clean this machine in motion, in violation of section 81 of the Labor Law, though some evidence of negligence would not permit a verdict on any kind of negligence, but is evidence only of the particular acts of negligence alleged, the court should have set aside a verdict in plaintiff’s favor as contrary to the evidence.
    A court errs in refusing to set aside a verdict on the sole ground that when the appellate court set aside a former verdict it held that there was some evidence of negligence, because both the trial court and the Appellate Division may set aside verdicts as contrary to evidence when a nonsuit could not be granted.
    Appeal by the defendant, the Utica Steam and Mohawk Valley Cotton Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 11th day of March, 1904, upon the verdict of a-jury for $2,500, and also from an order entered in said clerk’s office on the 15th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frederick G. Fincke, for the appellant.
    
      John F. Gaffney and P. H. Fitzgerald, for the respondent.
   Williams, J.:

The judgment and order should be reversed on the facts and a new trial granted, with costs to the appellant to abide event.

The action is for damages for personal injuries alleged to have resulted from the defendant’s negligence.

There have been three trials of the case. The first one resulted in a disagreement of the jury; the second, in a verdict for $2,500, which was set aside by this court as contrary to the evidence (98 App. Div. 633); the third, in another verdict for $2,500, which is here now for review.

The injury was to the plaintiff’s hand, which was in some way caught in the cogs or gear of a speeder machine in a cotton mill. The whéels and gear were inclosed in a box, which had a cover over it. The cog wheels meshed together in the box below the cover.

The plaintiff claims that the cover of the box was defective, and came off or'was pushed off, leaving the cogs and gear exposed; .that, she was cleaning the machine while-in motion, and. her háñd was. 'drawn down through the opening into the cogs and gearing by reason of waste which she was using getting caught.

It was claimed at the first trial, and during a part, at least, of the second one, that the cog wheels revolved downward and inwardly, and thereby the waste was drawn down between the cogs. On the last -trial, however, it was finally conceded-that the wheels revolved upward and outwardly.

It is difficult to Understand how the. waste and the plaintiff’s hand , could be drawn down through the opening on the top of the.box' into the cogs and gearing, in view of this conceded condition of things^ . ' - '

The defendant all along has claimed that the plaintiff reached up in the box under the cogs arid gearing from below, and received her injury in that way. ■

The trial justice charged the jury that the action must be maintained, if at all, upon the one. proposition that the cover of the gear b.ox was so defective that it came off, and that the plaintiff, .by reason thereof,, had her hand drawn down into the wheels and gearing ' and injured, and that unless the jury were satisfied that the accident-occurred in that way, there could be no recovery.

In referring to the evidence relating to these questions the justice made it very clear that the cover was not defective, and the accident did • not occur by the hand being drawn in from above through the uncovered opening; that the evidence tending to establish these facts was wholly ■ increffible, and that the accident evidently occurred by the hand being drawn in- from below the wheels and gearing, as claimed by the defendant.

Under McDonald v. Metropolitan Street R. Co. (167 N. Y. 66) and other like cases, these questions had, however, to be submitted to the jury. ...

It was also claimed that the plaintiff at the time of "the accident was under twenty-one years, of age, and that she was permitted and directed to clean this machine while in motion, in violation of seetion 81 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192), and that such violation of. law afforded some evidence of negligence. (Marino v. Lehmaier, 173 N. Y. 530.)

The trial justice submitted to the jury the questions of fact relating to this claim, and charged if the jury found such facts with the plaintiff, they were some evidence of negligence. They were not evidence of general negligence, so as to permit a verdict based upon any hind of negligence the jury might conclude the defendant was guilty of. They could only be evidence of the particular "acts of negligence which the justice submitted to the jury.

Upon all the evidence herein referred to the question of defendant’s'negligence as the cause of the accident was submitted to the jury. The justice could hardly have expected, under the charge, that'the jury would render a verdict for the plaintiff. They did so, however. ,

A motion for a new trial was made and denied, apparently on the ground that this court in setting aside the former verdict had held that there was evidence for the jury, but their verdict was contrary to the evidence.

We think the justice erred in this view of the matter. The power is given both the trial court and the Appellate Division to set aside verdicts as contrary to the evidence in cases where a non-suit could not be granted.

It needs no argument to show that this is a ease for the exercise of such power. A mere reading of the charge is all that is needed. It fairly presented the evidence and the comments made thereon to the jury were amply justified. The trial justice having failed to set aside the verdict and order a new trial, we must afford the relief to which the defendant is entitled.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law and fact.  