
    Josephine Fitzhenry, an Infant, by Mary Fitzhenry, her Guardian ad Litem, Plaintiff, v. Oliver Lamson, Defendant.
    
      Negligence —injury to a hand drawn into a mangle by a torn blanket on a roller.
    
    ■ In an action brought to recover damages for injuries sustained by the plaintiff, a girl fourteen years of 'age, while feeding, a mangle operated in the business, of the defendant, by whom, she was employed, evidence that the machine was out of order; that the blanket covering one of the. rollers was torn, and that the defendant had been notified thereof and had promised to have it repaired, ■ when taken in connection with the plaintiff’s testimony, that her hand was. caught by the torn part of the blanket and drawn into the mangle and crushed, requires the submission to the j ury of the question whether the plaintiff’s story was correct or not.
    In the absence of evidence that ' the. dangers of operating such a machine were apparent to a child of tke-age of the plaintiff, the defendant cannot claim that it was not negligence to direct her to work at the machine without having instructed her or pointed out such dangers. Even if such instruction had been given, it would not have availed to prevent the accident which in this case resulted, not from ordinarily dangerous conditions, but from a want of repairs.
    Motion by the plaintiff, Josephine Fitzhenry, an infant, by Mary Fitzhenry, her guardian ad litem, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of her complaint by direction of the court after a trial at the New York Trial Term on the 14th day of December, 1896.
    
      Adrian H. Larkin, for the plaintiff.
    
      Percy P. Trafford, for the defendant.
   Van Brunt, P. J.:

This action was brought to recover damages for injuries which the plaintiff had sustained by having her hand caught in a mangle operated in the defendant’s business'. The plaintiff was a girl, fourteen years of age, and was employed by the defendant to work at braiding. After having been so engaged for'about ten days one of the foremen of the defendant said to her, “ Do you want, to .make more money % ” The plaintiff replied, Why, certainly.” The foreman then said, Go right over to Annie.” Annie was a young woman who was working at the mangle which was distant about twenty feet from where the plaintiff was at work at braiding. The plaintiff went right over to Annie and commenced working at the mangle, and was told by Annie to take the work which she was putting into the mangle, out, as it came through. Upon the second day that the plaintiff was working at the machine the rollers had become heated and Annie was putting wet cloths through the machine to cool them. The plaintiff was standing at the back of the machine. The defendant seeing her there said, “You go around and help, don’t be standing there.” The plaintiff then went around and helped to put the cloths through the mangle while the defendant stood there. . She remained there about half an hour. After the' rollers had become cool -she put one or two vests ■through the machine and then went around and took them out of the. other side. The witness further testified that she alternated between the two sides and that when Annie went, away she put the work into the machine and took it out;

Annie was called as a witness for the plaintiff. ' She testified that she never knew of the plaintiff feeding the machine except at the time the wet cloths were used and at the time at which she wa,s hurt.

It appealed from the evidence that. a blanket which covered one of the rollers of the machine had been out of order for two or three days, being torn, and that the defendant had been notified of-it and promised to have it repaired. Upon the third day of the plaintiff’s working at - the mangle, Annie left the machine for some purpose . and the plaintiff commenced to feed the machine and take out the work; and while she Was so doing she testifies that her hand was caught by the torn part of the blanket, drawn into the machiné and crushed.

Upon the trial of the action the complaint was dismissed, to which ' exception was taken, and such exception’ was. ordered' to be heard in the first instance at the Appellate Division.

It is sought to sustain the ruling of the court below upon the ground that it was not proven that the mangle was unguarded and that the tear in the blanket caused the accident. It is claimed that no attempt;Was made -upon the trial to show that the machine was not properly guarded, but that, on the. contrary, the evidence showed that it was very well guarded.

The evidence shows that the machine was out of order ; that the ' blanket was .torn; that the. defendant was notified of it and promised' to have it repaired, and the' testimony upon the part of the plaintiff is that the loose part of this blanket caught her hand and dféW it into the mangle; If such á thing could happen-it is apparent that the machine was not properly guarded and that it was out of repair, and that such- want of repair caused -the. accident. There was clearly a question for the jury. Under, the plaintiff’s testimony ■they Were to determine as ■ to whether her story wás correct or not, or whether, in' view of the other evidence in the case, it w.as impossible that- the accident could have happened in the manner' testified to by the plaintiff.

It is further attempted to sustain the ruling of the court upon the ground that the plaintiff of her own accord, without orders from the defendant, attempted to feed the mangle, and that in so doing she was a volunteer and cannot recover for the injuries which she sustained. It appears that the plaintiff, when standing idle upon her own side of the mangle, was remonstrated with by the defendant and told to go and feed the machine with wet cloths and help in that regard. She understood from this order upon the part of ■ the defendant, as she very well might, that she was not to stand there idle, but was to assist in feeding the machine when it became necessary for the purpose of carrying on the work; and she swears that when Annie was absent she did feed the machine from that time forward; and it was in feeding the machine during said absence that the accident happened. The defendant’s remonstrance with her for standing idle and his instructions to her to go to the front were a clear intimation that she should go to the front and feed the machine when there was nothing to do at the back of the' machine. She was not by any means a volunteer in doing the work under those circumstances.

It is also claimed that, eyen if the defendant had told plaintiff to work at the mouth of the mangle without instructions and without pointing out the danger, he was not negligent under the circumstances, the risks being apparent. There is no evidence in this case tending to show that to a child but fourteen years of age the dangers of operating this machine were apparent. And further, if the evidence of the plaintiff is to be considered, it was not the ordinary danger attending the operation of the machine, but its want of repair, that caused the accident. The plaintiff had no reason to anticipate that this loose piece of blanket would catch her hand and draw it into the machine. This was not an obvious danger which was apparent from the operation of the machine.

The point that the failure to give instructions to the plaintiff, if any were needed, was the negligence of a fellow-servant, for which she cannot recover, seems to be answered by what has been said in respect to the previous point made. It was not the ordinary danger of running the machine which resulted in the accident; and, therefore, the question of instructions had nothing to do with it. It further appears that, as far as setting the plaintiff to work at the mouth of the machine was concerned, it was done by the defendant himself.

It would seem, therefore, that there were questions which should have been submitted to the jury, and' that it was error to dismiss the. complaint. The exception should be sustained and a new trial granted, with costs to the plaintiff to abide the event.

Rumsey, ¡O’Brien, Ingraham and Parker, JJ., concurred.

■ Exceptions sustained, new trial granted, with costs to the plaintiff to abide the event.  