
    William T. Creswell, Respondent, v. United Shirt and Collar Company, Appellant.
    Third Department,
    September 18, 1906.
    • Master and servant — injury to printer startled by unusual noise of a loose lever — no liability for unusual accident not arising from unsafe machinery.
    An employee operating a printing press who is so startled by the noise caused by the ‘‘throw off” lever flying back and striking against another part of .the machine, that he involuntarily thrusts his hand into the machinery, cannot recover for the injury, although he has warned the foreman a month before that the lever was loose, where it appears that the press was of a kind in common use and that the lever had never kicked back before; for, although the looseness of the lever may have impaired the efficiency of the machine, it did not render it unsafe, and the accident being the result of the nervousness of the servant, was of such a nature that it could not reasonably have been anticipated by the employer. .
    ■ Smith, J., dissented, with opinion.
    Appeal by the defendant, the United Shirt and Collar Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 21st day of December, 1905, upon the verdict of a jury for $1,000; also from an order entered in said clerk’s office on the 21st day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered -in said clerk’s office on the 6th day of January, 1906, amending said last-mentioned order.
    
      Rosendale & Hessberg [J. Murray Downs of counsel], for the appellant.
    
      James R. Stevens [ John Scanlon of counsel], for the respondent.
   Cochrane, J.:

The defendant is engaged in the business of making and selling shirts, collars and cuffs ■ in the city of Troy, N. Y. In such business it operates printing presses for the purpose of printing box labels. On July 1, 1904, the plaintiff, an employee of the defendant, was engaged in the work of printing labels with one of said printing presses. A part of the mechanism of such press, known as the tlirow-off ” bar" or lever flew back and startled the plaintiff so that involuntarily he thrust his hand into some of the machinery of the press and received an injury for which he has been awarded a verdict in this action. At the time of the accident the injured hand was under the press catching some labels which fell therefrom. This was not the usual way to perform the-work, but for some reason such niethod ivas being used by direction of defendant’s foreman. It is claimed that the defendant ivas negligent in permitting the throw-off bar or lever to be out of repair, so that it did not stay locked when pushed forward, as it would have done if it had been in proper condition. About a month before the accident plaintiff noticed that the lever was loose, and so notified the defendant’s foreman, who told him that it ivas all right and that he should proceed with the work. The press was of a kind which was in common use. It had been used by the defendant for about nine years and no accident therewith had ever occurred, and the lever never flew back prior to the accident.

This accident was of such a nature that it could not reasonably have been anticipated by the defendant in the exercise of ordinary care and prudence. The printing press was not a dangerous instrument. Uor did it become dangerous in the ordinary sense of the term when the lever became loose and wabbled. That may have impaired its usefulness and efficiency, but such impaired usefulness did not render it dangerous or unsafe. There is no evidence that the defect which caused the wabbling also produced or contributed to the injury. When the plaintiff called, attention to the looseness of the lever, his purpose was to direct the defendant’s attention to the fact that it was or might be in need of repair in order to perform its work properly and effectively. There is no reasbn to suppose that either the plaintiff or the defendant’s foreman had any idea that the looseness of the lever would make it dangerous to work with the press. Plaintiff both in his complaint and in his testimony states in substance that the lever suddenly flew back, and that the noise of its impact against another part of the machine which it naturally struck startled and nervously shocked him to such an extent that unconsciously and involuntarily he thrust his hand into the machinery. It was no part of the defendant’s duty to diagnose the nervous organism of its employees. Ordinary care on the part of the defendant did not require it to anticipate such an effect on the nervous system of the plaintiff. If any other employee near this press, but not. working therewith, had been similarly startled by the unusual manifestation of this same lever, and as a result had iq voluntarily thrust his hand into some machinery, could it be successfully claimed that he had a cause of action therefor against the defendant? If this judgment stands,'such question must receive an affirmative answer. The defendant was not bound to foresee and provide against such a casualty. To prognosticate an accident like this would require almost prophetic.vision. Failure to guard against that winch has never occurred, and which is very unlikely to occur, and which does not naturally suggest' itself to prudent men as something which should be guarded against, is not negligence. (Favro v. Troy & West Troy Bridge Co., 4 App. Div. 241.)

The judgment and orders must be reversed and a new trial granted, with costs to the appellant tombide the event.

All concurred, except Smith, J., dissenting in memorandum.

Smith, J. (dissenting):

This action is brought under the Employers’ Liability Act. The. question of contributoiy negligence and of assumption of risk were properly submitted to the jury.

Plaintiff was, by the direction of defendant’s foreman, working with his hand under the printing press in dangerous proximity to the machinery, by which he was afterwards hurt. The natural effect of the sudden flying back of this lever within a few inches of the plaintiff’s person, although it could not reach him, was to- startle him to an extent by which he might be -thrown off his- guard as to the dangerous situation in which his hand was placed in performance of' defendant’s work. With full knowledge, then, of this dangerous situation, defendant permitted this lever to be insecurely fastened. If plaintiff’s evidence be true, this fact caused his injury. Whether, under such circumstances, permitting this lever so to remain was or was not an act of negligence was, I think, a question for the jury,' and their determination thereof cannot, in my judgment, be said to be against the weight of evidence.

■ Judgment and. orders reversed and new trial granted, with costs to appellant to abide event. 
      
      Laws of 1903, chap. 600.— [Rep.
     