
    William McManus, by Margaret McManus, his Guardian ad Litem, Admitted to Prosecute as a Poor Person, Respondent, v. Albert W. Davitt, Appellant.
    
      Evidence — when ci plaintiff whdse testimony is denied, by an employee of the defendant does not establish the fact in dispute by a preponderance of evidence.
    
    Where,- in an action brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant, the plaintiff testifies to the existence of a fact essential to his right to recover, and a witness in the employ of the defendant denies the existence of such fact, if both statements are equally probable, and the characters of both witnesses are equally good, and there is no proof corroborating either, it cannot be said that the plaintiff has established the fact by a preponderance of evidence.
    Appeal by the defendant, Albert W. Davitt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 9th day of July, 1903, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 29th day of July, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    Plaintiff was an employee of defendant, and worked in his knitting mill. He was about nineteen years old, and was hurt June 22,1900. He brought this action to recover damages for the loss of four fingers from his left hand, which he claims occurred through the negligence of the defendant. Upon the trial at the Trial Term the jury gave him a verdict of $2,000, and from the judgment entered thereon, and from an order denying a new trial on the minutes, the defendant takes this appeal.
    
      
      John H. Gleason and Thomas O’Connor, for the appellant.
    
      Isaiah Fellows and II. T. O’Brien, for the respondent.
   Parker, P. J.:

The sole negligence- which is charged against the defendant is that he. failed to notify the plaintiff when he changed from the lopper ” machine to the “ picker,” that there were rollers at the end thereof, which received and carried away, the cotton from the revolving apron upon which the plaintiff was required, to place it. There were two fluted steel rollers across the machine about three and one-half feet long, up to which the revolving apron carried cotton placed thereon and between which such cotton was then pinched and, by their revolutions, was carried into a covered part of the machine, where it was picked apart and dust and all extraneous matter was blown from- it. The upper of such rollers was about three inches above the level of the apron, but when the machine was working and cotton was on the apron it covered the rollers so that they were not visible. This apron was about three and one-half feet wide and three feet long, and the plaintiff claims that he was told to spread or pad the cotton down upon this apron, and that after he had so worked at this machine about five minutes his left hand was drawn between such rollers and his fingers so badly crushed that they had to be amputated. His claim is, that such rollers were a dangerous feature of that machine, of which he should have been notified.

It is plain that if, at the time he began to work on that machine, he knew of the existence of such rollers and the manner in which they were operating, then the defendant’s omission to notify him of the same cannot be deemed negligence which caused the injury. He would, in that event, have begun his work fully possessed of all the knowledge that the defendant could have given him.

The plaintiff is exceedingly positive that he did not know of the rollers; that he could not see them because they were covered with the cotton placed upon the apron, and he insists that he worked there without having any knowledge that any rollers were there.

It is probable that he could not then see the rollers because they were so covered, but can it be credited that he did not know they were there 1

The plaintiff had worked on the “lopper” machine for five weeks. It stood in the same room, parallel to and by the side of the “ picker,” and distant about four feet therefrom. A revolving apron carried cotton to two rollers which picked it up and took it from the apron precisely as those upon the picker operated; and: the plaintiff’s work upon the lopper was to keep the apron covered with cotton, so that the revolving rollers could so deliver it to other parts of the machine. When he began work on that “ lopper ” he was shown how it worked and what he must do to keep it at work, and it would seem that instruction as to the one machine was plainly applicable to the other. For five weeks the plaintiff had seen the picker ” machine run by O’Hearn within four feet of his own work; had seen the two aprons revolving, and the cotton taken from the end of each in apparently the same way, and he well knew that it was taken from his own machine by the two rollers which were revolving thereon. During all that time the rollers on the “ picker,” when it was not running, were in plain sight, and not only were such machines not running nights and mornings, but on every Saturday he helped clean- both of such machines as well as one or two others in that room. His statement that he had not, during all that time, discovered that there were rollers on the “ picker ” operating exactly as those on the “ lopper ” is so strongly contradicted by the situation that it is incredible. And it is a very serious question whether the defendant, knowing of such surroundings and of the similarity of the machines and of the intimate knowledge which the plaintiff had of the lopper, might not reasonably assume that he had the same knowledge ,of the picker, which all the time had been running beside him. Would not a man of ordinary prudence have so, believed ?

But, moreover, unless the plaintiff was instructed by one having authority to leave the lopper for a time and go to work on the picker, there has been no negligence on the defendant’s part in not instructing him concerning the picker.

The plaintiff testified that O’Hearn so directed him, and that Shea, who hired him and was concededly the defendant’s superintendent, told him (plaintiff) to do whatever O’Hearn instructed him to do. If these two statements are true, then we should consider the plaintiff as having been set to work by the defendant on the

picker; but if either is false, then the defendant owed the plaintiff no duty of instruction concerning the picker. As to the first statement, O’Hearn testified positively and distinctly that he did not tell the plaintiff to go to work on the picker. He squarely contradicts the plaintiff on that point. • There is no direct evidence corroborating either on that question, nor do I find in this record any reason why the jury should have believed.the plaintiff rather than O’Hearn. On the contrary, the plaintiff’s statement a few days after he was hurt, to the defendant and Porter, as to how he came to be hurt, made no claim that he was set to work on the picker, nor indeed did. it claim that he was at work thereon. If the defendant’s and Porter’s statement of what he then told them is correct, it rather' corroborates O’Hearn than the plaintiff.

But the burden was upon the plaintiff to prove, by a preponderance of evidence, that O’Hearn did set him to work on the “ picker.” Evidently, unless he was so set at work on that, machine, the defendant has omitted no duty which he owed the plaintiff, and unless that fact is made to appear by a preponderance of evidence, the plaintiff has failed to make out .his case.

Moreover, Shea testified that he hired the plaintiff, took him to the “ lopper,” showed him how to manage it and set him to work on it, and that he never instructed the plaintiff to obey Ó’Hearn’s orders. There is no evidence in the case that warrants the conclusion, save that statement of the plaintiff that O’Hearn had been authorized by the defendant to direct the plaintiff, or any one else, where he was to work. Save for the plaintiff’s statement O’Hearn was a mere coemployee with the plaintiff, and if he did set the plaintiff to work on the “picker,” it was the mere act of a coemployee, done for his own convenience and not as the act. of the master.

How, why should the jury have believed the plaintiff in this particular, rather than Shea? The burden was again upon the plaintiff to establish this fact by a preponderance of evidence. Is it to be said that, in the absence of proof corroborating either, a jury may disregard the evidence of one who is at work for the defendant, merely because he is so at work, and to that extent is interested in the result ? So the plaintiff is interested in the result fully as much as any such witness could be; and when, as in this case, the stateínent of the plaintiff on the one hand, and that of the employee on the other, is equally prohable, the character of each equally good, and no reason apparent why the one statement is not as credible as the other, I am of the opinion that it should not be held that the plaintiff has established his statement by a preponderance of evidence, because the witness who contradicts him is an employee of the defendant. To award damages for alleged negligence against any defendant on such a theory is practically a denial of justice to the employer. • And yet it is a method of reasoning that easily satisfies the conscience of very many juries, and enables them to follow thé dictates of their hearts instead of their judgments.

There are so many facts in this case, which should be proven by a preponderance of evidence on the part of the plaintiff in order to entitle him to recover, that have been left in great doubt, and upon which the evidence is most unsatisfactory, that I am of the opinion that, this verdict should be set aside and a new trial had before another jury.

All concurred; Chase, J., in result.

Judgment and order reversed and new trial grantéd.  