
    ELLEN REARDON, an infant, by guardian, Respondent, v. THE N. Y. CONSOLIDATED CARD CO., Appellant.
    
      Master and servant—Negligence and contributory negligence—Hule as to machinery—exception in favor of youth, &e.—violation of statute.
    
    In an action by an employee to recover damages for an injury received from a machine which such employee had to operate in the service of the employer, the employee must affirmatively establish: 1. That the machine or appliance was defective; 2. That the master had knowledge or notice, or ought to have known of the fact; and 8. That the servant did not know, and had not equal means of knowing with the master.
    The rule is not rigidly enforced against persons who are too young in years, . and too inexperienced in the service, to appreciate the dangers to which they are exposing themselves, especially if the employer permits the danger to exist in violation of the. statute law.
    
      Decided December 11, 1884.
    The rule is not relaxed, however, where the servant, as in the case at bar, although a minor, .is yet 16 years of age and has had an experience of six years in the business, and there is no violation of any statutory provision by the master.
    Where the case made out against the defendant is as consistent with the theory of plaintiffs contributory negligence as with the theory of defendant’s negligence, plaintiff cannot recover.
    
      Thus, in the case at bar, the injury was caused by the descent of a knife connected with amachine which the plaintiff was operating. This knife was raised and lowered by means of a treadle set in motion by the operator’s foot. The plaintiff had raised the knife and placed her hand under it for the purpose of clearing out the die; while her hand was in this position, the knife came down and injured it. All the testimony showed that with the knife up it was impossible for it to come down until the treadle was put in motion, and that the treadle could not be put in motion by any other part of the machinery. There were no circumstances suggesting any other theory than that plaintiff herself put the treadle in ' motion. Held, that she could not recover.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal by defendant from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.
    The facts sufficiently appear in the opinion.
    
      Burrill, Zabriskie & Burrill, attorneys ; and John E. Burrill and George Zabriskie, of counsel for appellant,
    on the points decided, argued :—I. The plaintiff failed to show, that she did not have the means of discovering the alleged defect, and equal means of knowledge with the defendant in respect thereto. Servant, in order to recover must establish three propositions : 1. That appliance was defective; 2. That master had notice or knowledge, or ought to have had; 3. That servant did not know, and had not equal means of knowing with master (Loonan v. Brockway, 3 Rob. 74; Wood, Master & Servant, 791; DeForest v. Jewett, 88 N. Y. 265 ; Wright v. N. Y. Central R. R., 25 Id. 562; Hayden v. Smithville Co., 29 Conn. 
      548; Mad. Riv. Co. v. Barber, 5 Ohio St. 541; De Graff v. S. B. & N. Y. R. R. Co., 3 T. & C. 255; S. C., 76, N. Y. 125).
    II. The court erred in refusing to dismiss the complaint on the ground mentioned in preceding point, and in refusing to charge on that proposition in accordance with the defendant’s request. This point is sufficient to reverse the judgment (Loonan v. Brockway, 3 Rob. 71-83; Wright v. N. Y. Central, 25 N. Y. 562; DeForest v. Jewett, 88 Id. 265).
    III. But in fact, there was no evidence to show, that there was any defect in the machine ; or that the machine was defective in construction. See the distinction between a defect in the construction of machine and its getting out of order or becoming defective by use (De Graff v. N. Y. Central, 76 N. Y. 125).
    IV. There was no evidence that the machine was dangerous, or was in a dangerous condition at the time of the accident. Yor any evidence offered to show, that the defendent had any knowledge of the alleged dangerous condition of the machine, or that it was called upon or neglected to remedy it, or declined or neglected to have it remedied (Devlin v. Smith, 89 N. Y. 170; Loonan v. Brockway, 3 Rob. 74; Wright v. N. Y. C. R. R. Co., 25 Id. 562 ; Owen v. N. Y. C. R. R., 1 Lans. 108).
    V. Plaintiff testified : “I have to keep my foot on the treadle all the time, in order to make the machine work, and if I take my foot off the treadle, the knife stops; so the knife does not move at all, unless I keep my foot on the treadle all the time.” The injury, therefore, was not occasioned by any defect or disorder in the machine, by the knife sticking in the die, or by the shaving or the removal of the shaving, but was occasioned by the knife’s coming down while her hand was under it; and the knife could not have come down unless she had put her foot on the treadle.
    VL The court erred in refusing to dismiss the complaint, because the plaintiff had not shown negligence on the part of the defendant, or the absence of contributory negligence on her part (Reynolds v. N. Y. Central R. R. Co., 58 N. Y, 248 ; Cordell v. N. Y. Central R. R. Co., 75 Id., 332).
    VII. The charge that the fact of infancy of the servant or operator affected the question of defendant’s liability, was erroneous (De Graff v. S. B. Co., 76 N. Y. 125 ; Evans v. Lake Shore Co., 12 Hun, 289 ; Sullivan v. India Mfg. Co., 113 Mass. 396).
    
      John D. Townsend, attorney, and of counsel for respondent,
    on the points decided, argued :—I. No error was committed by the refusal of the judge to dismiss the complaint at the close of the testimony. The plaintiff had shown that the machine at the time of the accident was both out of order and defective. There was undisputed testimony then that the action of the knife in coming down upon her hand on the occasion when the accident occurred, was an indication of disorder in the machine which had never developed before. It had been shown by undisputed testimony then, that the defendant knew that the machine had been out of order for two months at least, and that the plaintiff had frequently complained to the defendant, through its agents, that she could not work it properly. Daniel Cashin, a superintendent of the defendant, and called by him as a witness, had, at this time, confirmed the statement of the plaintiff that the machine was out of order, and that she had made frequent complaints to him and the defendant’s machinist in regard to it. Some evidence at the time this motion was made, had been presented on the part of the defendant which, if credited, might tend to show some negligence on the part of the plaintiff, but there was no evidence which established such unmistakable negligence on her part as would justify the judge in taking the case from the jury (Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 464-466 ; Hawley v. N. C. R. R., 82 Ib. 370 ; Ochseinbein v. Shapely, 85 Ib. 
      224 ; Dowling v. N. Y. C. & H. R. R. R. Co., 90 Ib. 670 ; Palmer v. Dearing, 93 Ib. 7).
    
    II. There was no error in charging the jury in effect “ that more care should be expected from a master in providing machinery, and the supervision of it, when he employed young persons and women to work it, than when he employed male adults.” The evidence shows that the plaintiff, at the time of the accident was seventeen years of age (Omeno v. The Hud. R. R. R. Co., 38 N. Y. 445 ; Prendergast v. N. Y. C. & H. R. R. R. Co., 58 Ib. 652; Thurber v. H. B. M. & F. R. R. Co., 60 Ib. 327; Kain v. Smith, 89 Ib. 375, 384 ; Dowling v. N. Y. C. & H. R. R. Co., 90 Ib. 670).
   By the Court.

Freedman, J.

The action is for a personal injury. The plaintiff’s amended complaint alleges : (1) That the plaintiff was at the time of the injury, in the employ of the defendant as an operator on a card cutting machine; (2) that such machine was out of order at the time, as was well known to the defendant, and was in a condition dangerous to be used ; (3) that without negligence on her part and without knowledge that the machine was defective, she was injured by a knife connected with the machine; and (4) that such injury was caused by the negligence of the defendant in furnishing to plaintiff, while so employed, a machine without proper protection against danger.

The answer put in issue all the material allegations of the complaint and set up that whatever injuries plaintiff sustained were the result of her own negligence and the negligence of her fellow servants.

At the trial, the evidence showed that the plaintiff, who, at the time of the injury was about sixteen or seventeen years of age, had at that time been in the employ of the defendant in its card manufactory for about six years, and at work on the particular machine complained of for about six or eight months, and that she was fully acquainted with its operation and competent to operate it. The machine in question cut cards from card strips cut by another machine, and the strips were passed by the plaintiff into the machine in question, through rollers which drew each strip under a Imife or punch which moved vertically. The machine was operated by steam, and power was supplied from the main shafting by means of a fly-wheel. The machine was started by plaintiff putting her foot on a treadle which connected the wheel with the vertical knife. It was stopped by plaintiff taking her foot off the treadle when the knife became disconnected and the wheel continued to revolve without moving the knife. In operating the machine it sometimes happened that the Imife got stuck' and tore the cards, and then it became necessary to get the pieces of torn or broken cards out from under the knife before plaintiff could continue her work. So far there was no dispute as to the facts.

The plaintiff then went on and showed that she had repeatedly extracted with her fingers, bits of torn cards from the machine, and the knife on such occasions had always remained stationary after she had raised it. On the occasion complained of, the knife got stuck, plaintiff raised it, and thereafter, while plaintiff was engaged in extracting torn cards, the knife came down without any apparent cause and severely injured her right hand. She also testified that she had on one or two prior occasions complained to the superintendent and the machinist of defendant’s factory that the Imife would stick and in consequence thereof spoil her work, and that she had been told to do the best she could. This was the full extent of any complaint ever made by the plaintiff to any one.

On the part of the defense it was shown, among other things, by a number of witnesses that the machine was a suitable, proper and safe one for the work required to be done by it; that a large number of similar machines had been operated in the same room for a number of years and by a large number of girls and women, and that no accident beyond the scraping of a finger nail in one or two instances had ever occurred to any one in the course of their work; that, whenever a knife got stuck, it was not in consequence of any defect in the machine, but either because the knife got dull and for that reason would tear the cards, or because the operator did not feed the card strips in properly and squarely and in the right direction; that all the operators were from time to time warned to be careful, and that in case a knife got stuck, the duty of every one of them was to call a certain machinist who was on hand in the room for the purpose of' freeing the knife and seeing to it that the machine should work properly, and who, whenever thus called upon, did free the knife and did every thing else which was necessary to be done to make the machine run properly ; that the sticking of the knife in the machine operated by the plaintiff on the day of the injury, was caused neither by the defect nor ’ by want of repairs in the machine, for the machine was, on examination both before and after the injury to the plaintiff on the day in question, found in perfect order and required and received no repairs ; that the plaintiff had never at any time made any other complaint concerning the machine than that the knife would stick and spoil her work ; that the same machine had been used by the plaintiff for more than a week previous to her injury without any difficulty or complaint whatever ; that on the day of the injury, when the knife in plaintiff’s machine got stuck, the plaintiff neglected to call the machinist whose duty it was to free it and to look after the machine, but undertook to do these things herself, contrary to her instructions and duty in the premises ; that as soon as the operator’s foot is taken off the treadle of such a machine, the machine is thrown out of gear and the knife, if up, cannot possibly be made to descend except by setting the treadle in motion again, and that consequently the plaintiff must have set the treadle in motion again, after she had stopped the machine, and thus made the knife to come down while her hand was yet under it.

In addition to all this, there was evidence given by several girls, co-servants of the plaintiff, to the effect, that at the time of the injury there was some skylarking going on between a girl named Maggie Haulton and the plaintiff, in consequence of which plaintiff failed to give proper attention to her work, and that on the happening of the injury Maggie Haulton exclaimed that it was her fault.

Upon a careful review of all the evidence on both sides, I have satisfied myself that both upon the question of defendant’s negligence and the question of plaintiff’s contributory negligence, the preponderance of the evidence is in favor of' the defendant. There is no evidence of any defect, unless the tendency of the knife to get stuck was one, and that, it seems to me, was not so much a defect as a contingency which was to be expected and for which the plaintiff should have been on the watch and guard. But if it did constitute a defect of which the defendant had notice, it was one concerning which the plaintiff had equal, if not better knowledge. In such a case the master is not liable, for while the rule that the master is bound to furnish suitable and safe machinery is well established as a general proposition, it is equally well settled, as an exception to the rule, that the master may, as against his servant, choose his own appliances, and that if the risk be apparent, the servant assumes it (White v. Sharp, 27 Hun, 94, recently affirmed by the court of appeals; Gibson v. Erie R. R. Co., 63 N. Y. 449).

Consequently in order to recover in such a case the servant must establish three propositions, viz :

(1) That the machine or appliance was defective ; (2) that the master had knowledge or notice or ought to have known; and (3), that servant did not know, and had not equal means of knowing with the master (Loonam v. Brockway, 3 Rob. 74 ; Wright v. N. Y. Central R. R. Co., 25 N. Y. 562 ; De Graff v. N Y. C. & H. R. R. R. Co., 76 Ib. 125 ; De Forest v. Jewett, 88 Ib. 264 ; White v. Sharp, 21 Hun, 94).

This doctrine has been uniformly upheld in England and in America since the case of Seymour v. Maddox (5 Eng. L. & E. 265), where the proprietor of a theatre v/as sued by an actor for injuries sustained by insufficient lighting of the stage, and falling through an open trapdoor. The court held that the actor could not recover, because he voluntarily exposed himself to the danger, of which he had the same knowledge as the defendant himself.

Thus, in Hayden v. Smithville Manufacturing Co. (29 Conn. 548), the court explicitly declared as follows : ‘ ‘ Every manufacturer has a right to choose the machinery to be used in his business, and to conduct that business in the manner most agreeable to himself, provided he does not thereby violate the law of the land. He may select his appliances and run his mill with old or new machinery, just as he may ride in an old or a new carriage, navigate an old or new vessel or occupy an old or new house, as he pleases. The employee, having knowledge of the circumstances, and entering his service for the stipulated reward, cannot complain of the peculiar tastes and habits of his employer, nor sue him for damages sustained in and resulting from that peculiar service. .... An employee, having knowledge, cannot claim indemnity except under particular circumstances. He is not secretly or involuntarily exposed, and likewise is paid for the exact position and hazard he assumes ; and so he may terminate his employment, when, from unforeseen perils, he finds his reward inadequate or unsatisfactory.”

It is true the rule is not rigidly enforced against persons who are too young in years and too inexperienced in the service to appreciate the dangers to which they are exposing themselves (Coombs v. New Bedford Cordage Co., 102 Mass. 572 ; Laning v. N. Y. Central R. R. Co., 49 N. Y. 521). And especially if the employer permits the danger to exist in violation of the statute law (Britton v. Great Western Cotton Co., L. R. 7 Exch. 130).

But in the case at bar, no such reason exists for relaxing the rule. The defendant violated no statutory provision, and the plaintiff, though only sixteen, or. seventeen years of age, had an experience of six years in the business. The case, therefore, comes fully within the decision of the court of appeals in De Graff v. N. Y. C. & H. R. R. R. Co. (76 N. Y. 125), where it was held that the fact that the employee is a minor, does not, if he is of age sufficient and is competent for the service in which he is employed, affect the duty or the liability of the employer to him ; that the risks and dangers incident to the business are an element of the employment, and the employee cannot claim, on account of infancy, to be relieved from the consequences of such risks or dangers.

In the next place, plaintiff’s injury was rot the natural consequence of the sticking of the knife. If that was a defect, it was cured by the plaintiff herself before she put her hand under the knife. According to her own showing she ran the knife up and then stopped its movement by taking the foot off the treadle. The machine then was as harmless as a sewing machine. For all the testimony including that of the plaintiff upon this point is to the effect that as long as the treadle was not put in motion again, the knife could not come down again, and that the treadle could not have been put in motion again by some, other part of the machinery. The knife, however, did come down again, and, in the absence of any other explanation, it must be assumed that its downward motion was caused by the plaintiff putting the treadle in motion again while she still had her hand under the knife. In the nature of things, no other conclusion can be reached, in the absence of proof of some circumstance, no matter how slight, suggesting some other theory, and no such proof is in the case. Where, then, was the negligence of the defendant which caused the injury and which the plaintiff was bound to point out and to establish by a preponderance of proof ? The burden was on her throughout to establish by a preponderance of evidence that the injury complained of was the result of defendant’s negligence, exclusive of any other primary cause. This is too familiar a rule to require the citation of authorities in its support. To say the very least, therefore, the case made out against the defendant was as consistent with the theory of plaintiff’s contributory negligence as with the theory of defendant’s negligence, and in such a case it is well settled that the plaintiff cannot recover (Cordell v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 330 ; Desmond v. Rose, 46 Super. Ct. 569 ; Glendening v. Sharp, 22 Hun, 78).

For the reasons stated, I am of the opinion that the defendant, at the close of the evidence on both sides, was entitled to the direction of a verdict in its favor, and that the denial of the defendant’s motion in this respect constituted error.

Other interesting and grave questions are presented by the exceptions taken by the defendant to the charge and to the refusal of the court to charge certain requests, but as the examination already made calls for a new trial, it is unnecessary to notice or discuss them

The judgment and order appealed from should be reversed and a new trial ordered, with costs, to the appellant to abide the event.

Sedgwick, Ch. J., and Van Vorst, J., concurred.  