
    John Moore, an Infant, etc., by Sarah Rofling, His Guardian ad Litem, Respondent, v. Standard Oil Company of New York, Appellant.
    Second Department,
    February 14, 1913.
    Master and servant — negligence — injury to minor by soldering machine — evidence—waiver of exception—trial — charge.
    Where in an action to recover for personal injuries to a minor who had his index finger .caught in a soldering machine, it was alleged that the defendant was negligent in failing to provide safe and suitable machinery and to properly guard and screen the same and in failing properly to instruct the plaintiff, the admission of testimony as to the absence of a stopping device is improper, as it was not pleaded as a ground of negligence, and especially as the trial court submitted the question to the jury as to whether the defendant had discharged its duty to the plaintiff in failing to provide such a device. .
    The defendant did not waive its exception to such testimony by introducing proof to meet it or by failing to except to that portion of the charge which submitted the question to the jury.
    The conduct of the trial and the charge by the court were unfavorable to the defendant.
    Judgment for the plaintiff reversed and new trial granted.
    Appeal by the defendant, the Standard Oil Company of New York, 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 13th day of March, 1912, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 14th day of March, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Dean Emery (Vine H. Smith and Chester O. Swain with him on the brief], for the appellant.
    
      Henry M. Dater [George F. Elliott and Jay S. Jones with him on the brief], for the respondent.
   Carr, J.:

This is an appeal from a judgment entered on the verdict of a jury in favor of the plaintiff for the sum of $3,000, and taxed costs, as well as from an order denying a motion for a new trial under section 999 of the Code of Civil Procedure. The plaintiff was a young lad something over fourteen years of age, and was an employee of the defendant in one of its factories in the borough of Brooklyn. While he was at work soldering handles to the tops of tin cans, which were designed for holding illuminating oil, the index finger of his left hand was caught in the moving mechanism of the soldering machine, and he lost the tip of that finger. The negligence charged against the defendant is set forth in paragraphs 2, 3 and 4 of the complaint, as follows:

“II. That it was the duty of the said defendant to provide safe and suitable machinery for plaintiff’s use in his said employment and to properly protect the same, and it was also the duty of said defendant to instruct the plaintiff herein as to the proper manner in which to do his work, because of his tender age.
“III. That it was the duty of said defendant to provide a safe and proper screen or guard on said machine which screen or guard was usual on machinery of this character and necessary in order that the same, could be operated safely.
“ IV. That said defendant wholly disregarding its duty negligently and carelessly permitted plaintiff herein to engage in work on said machine without informing him that said work was in any wise dangerous and in failing to instruct plaintiff as to the proper manner in which to do the said work, and not regarding its duty as aforesaid it negligently and carelessly failed to provide a safe and secure covering screen or guard for said apparatus and machine as aforesaid.”

When the action came to trial the plaintiff, over the objection and exception of the defendant, was permitted to give proof as to negligence of the defendant in failing to have upon the machine in question a stopping device, by which any operator on the machine could immediately stop the moving mechanism. A number of photographs were introduced in evidence and are before us on this appeal, and likewise part of the mechanism of the soldering machine. From these photographs it is apparent that a number of boys usually work together at the same time at the machine. The appellant contends that the admission of testimony as to the absence of a stopping device was improper, in that the plaintiff had specifically pleaded his claims of negligence of the defendant in his complaint, and he should have been confined thereto in his proofs. ¡No proof was offered to show that the machine was out of order in any way, and the claim that it should have been guarded by a screen was abandoned during the course of the trial. I think this objection is well taken, especially as the trial court, in submitting the question of negligence on the part of the defendant to the jury, presented to it the question as to whether the master had discharged its duty to the plaintiff in failing to provide a proper stopping device for the machine. It is argued, however, that the defendant has waived this exception by introducing proof to meet that offered by the plaintiff on this point,' and likewise by failing to except to that portion of the charge which submitted this particular question to the jury for consideration. No authorities are cited to sustain this proposition, except some which relate generally to evidence admitted without objection and exception on the part of the defendant. If an exception to the charge were necessary also, its absence would not preclude us from considering the question on this appeal, because such question may be reviewed by this court on the appeal from the order denying the motion for a new trial. It is not necessary to cite any authorities on this proposition. There are some further objections made by the appellant, among others, as to the admission of proof on the part of the plaintiff, that there had been prior accidents on this machine without proving the circumstances of such accidents. This proof came in over objection and exception by the defendant on the cross-examination of the defendant’s witness Oarr, but so far as this proof went, it was not proper cross-examination, as Oarr had given on his direct examination no testimony whatever on this point. The proof, therefore, must be considered as affirmative evidence offered by the plaintiff, though elicited on cross-examination of the defendant’s witness. The trial developed an atmosphere of its own, which was by no means favorable to the defendant, as witnessed by the record where the plaintiff was allowed to ask the defendant’s foreman, over objection and exception, whether the machine in question was not generally known in the factory as the “finger-cutting machine.” The charge-of the learned trial court itself, by inadvertence no doubt, was in one particular injudicious, as will be seen from the following language: “It is for that reason that you twelve men have been called here as judges of the facts, and to pass upon the facts. You are the exclusive judges of the facts in this case. Your action cannot be reviewed. Any mistakes I make in my statement of the law to you may be reviewed, but not your action; so that you occupy a very high and honorable position in this court.” Such a statement might prove little less than a strong temptation to a jury of average men in a case where on one side was the Standard Oil Company and on the other a poor lad with a maimed finger.

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

Jerks, P. J., Hirschberg, Burr and .Thomas, JJ., concurred.

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