
    John Borgeson, Resp’t, v. United States Projectile Company, App’lt.
    
      (Supreme Court, Appellate Division, Second Department,
    
    
      Filed Feb’ry 4, 1896.)
    
    1. Master and servant—Negltgenge—Question for jury.
    In this action, which was one hy a servant against his master for personal injuries, the question of contributory negligence was held to be for the jury.
    
      
      2. Same.
    In such case, whether the dangers were latent or were apparent to ordinary observation and discoverable by plaintiff in the exercise of proper care, is a question for the jury.
    3. Damages—Excessive. ,
    The judgment for $8,000, in this action for personal injuries, was held to be excessive and should be reduced to $5,000.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    William N. Dykman, for app’lt; Charles J. Patterson, for resp’t,
   HATCH, J.

— The action arises out of the relation of master and servant. Defendant, among other things, manufactured steel tubes, and employed in such manufacture a machine called an “hydraulic draw bench.” It has a cylinder, piston, and piston rod, working upon the same principle as a steam engine; the motive power being water under pressure, instead of steam. The stroke of the piston rod is horizontal, and extends -from the head of the cylinder to a die head—a distance of thirteen and one-half feet. At the outer end of the piston is a,cross head or ram, with jaws. The die head is stationary, and the tube is passed through the fixed die, the size of the tube depending upon the size of the die. The head of the piston rod comes in contact with the frame of the die, and there the jaws seize the piece of steel, and draw out the tube from the die. The pressure exerted by the machine is 2,500 pounds to the square inch. This pressure is applied upon one side or the other of the piston head inside the cylinder; and one side' forcing it forward, and the other side drawing it back. The pressure' of water in the cylinder is controlled by valves, and these valves are controlled by a small wheel near the die head, so situated, that the operator of the machine can control the application of the power with one hand, and adjust the jaws of the ram to the end of the tube with the other. Turning the wheel in one direction opens the inlet, and shuts the exhaust. Turning it in the other reverses the action, and, to close both inlet and exhaust, the wheel must be at an exact central point between the extremes. dSTo gauge is attached to show the point, and the operator requires the knowledge either through instruction or by experience. If the wheel is not stopped at the precise center, the piston rods will move in one direction or the other, the rapidity of the movement being dependent upon the pressure; but usually the movement is slow, as the wheel is near the center, and is scarcely perceptible. In the particular machine which is the present subject of examination, the testimony of plaintiff tended to establish that the machine was defective, caused by a leakage of water from the valves, which defect rendered dt impossible to center the valves and stop the motion of the piston rods. The defect had always existed, was not visible to ordinary inspection, and defendant had notice of. Prior to the 25th of January, 1894, plaintiff was employed at a machine in another part of defendant’s factory from where the hydraulic machine was situated, engaged in boring out holes in explosive shells. Qn the day before, he was directed by defendant to work upon the hydraulic machine, and began his service thereon on the 25th. He had not worked upon such a machine prior thereto, and was given no instructions with respect to how the machine worked, except that the foreman of the defendant operated the machine, and drew out one or more tubes, before plaintiff commenced, and then went away. No other instruction was imparted, and no notice of the defect in the machine was given; and plaintiff had no knowledge of its existence, from any source. He began work upon the machine at seven in the morning, and received an injury to his hand within two hours thereafter. The injury was received in this wise: Plaintiff had drawn five or six tubes, when he noticed that one was scratched. He called the forman’s attention to it. It was decided that the fault was in the die, and plaintiff was directed to remove the die, and take it to the machine room and have it polished. He adjusted the wheel to stop the machine,'and supposed that it was stopped. Whether the piston head was at the head of the machine when plaintiff left it is not clear, nor is it important here; for, wherever it was, only the closest observation could detect that it was in motion, and it is doubtful if its motion was apparent to the naked eye. Plaintiff procured the die to be polished and returned to the machine. When he returned the piston head was about midway between the head of the machine and the die. Plaintiff, with the assistance of one Reilly, a helper about the machine, proceeded to place the die in position. In doing this he held the die in with his left hand on the inside of the die head, while Reilly screwed in the die from the outside. While his hand was in this position, the piston head was stealing noiselessly upon in. Plaintiff says he first felt it upon his hand, then he tried to pdll it out, could not, called out', seized the wheel with his right hand, turned it in the wrong way, and his hand was crushed. While the evidence was in -many respects conflicting, and that upon essential features of the case, the foregoing statement must be regarded as full established by the evidence. The charge of court fairly submitted to the jury the question whether defendant was guilty of negligence in placing plaintiff at work upon the machine Without warning of the dangers which existed in its operation, without instructions as to the difficulty or impossibility of exactly centering the valves, and without notice of the fact that the piston rods would not remain stationary. In this regard the case is brought within the principle of the decision is Gates v. State, 128 N. Y. 221 ; 40 St. Rep. 87, which is controlling upon all the principal points presented by this record. Whether defendant was guilty of negligence which contributed to the injury; whether or not the dangers were open to ordinary observation, and discoverable by plaintiff in the exercise of proper care; or whether they were latent, and not apparent,—presented a question for the jury, and their finding thereon is conclusive.

A more serious question arises respecting the amount of the verdict. It was the left hand that was injured. The physicians who attended plaintiff testified' that the naiddle finger was amputed ; tliat he has only partial motion of the first and third fingers; that the joints are permanently stiff, the power- of the hand materially affected, and much pain attended the injury. His services were worth $25. Edward Miller, a physician called for the defendant, stated: That he examined the hand eleven weeks after the-injury, and found the middle finger of the left hand had been amputated at the junction of the hand with the finger, the first and third fingers had scars on the palms or surface, and the tendons which extend the fingers were partially contracted; but the bones were in good condition, and the fingers were not absolutely stiff, at the time. He could flex his fingers, and move them back and forth about half way. That continual motion of the fingers would have overcome the stiffness existing at the trial. Plaintiff testified that he had terrible pain for about two weeks, and for five weeks after he had his finger amputated ; that he has no pain in his hand now, except when he tries to straighten his fingers ; that he has continually tried the movement of his fingers since his injury. The thumb and little finger were not injured. He has been unable to work as before, and cannot use the hand to advantage. We have recently had occasion to state the rule which governs in this class of causes, and it would serve no useful purpose to restate it. De Wardener v. Railway Co. (Sup.) 37 N. Y. Supp. 133 (not officially reported). Applying that rule to the evidence in this case, we think the verdict excessive in amount. Murray v. Railroad Co., 47 Barb. 196 ; Coppins v. N. Y. C. & H. R. Railroad Co., 48 Hun, 292 ; 17 St. Rep. 916.

Our conclusion, therefore, is that the judgment and order appealed from be reversed, and a new trial ordered, unless plaintiff stipulates to reduce the judgment to the sum of $5,000; and, if, he so stipulates, then the judgment and order appealed from are affirmed, without costs to either party in this court.

All concur.  