
    Peter Hartwig, Resp’t, v. The Bay State Shoe and Leather Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 15, 1887.)
    
    1. Negligence—Convict labor—Duty of employer in furnishing machinery.
    This plaintiff was a convict in the Kings county penitentiary, one of a number who were farmed out to the defendant to be employed in making boots and shoes. By the terms of the contract, the prison authorities were to enforce the performance of the work, and the defendant to furnish all the tools and stock necessary for the employment. Held, that while the usual relation of master and servant did not exist, because the labor was compulsory, the defendant must be held to have owed a duty to the convict in respect to the machinery to be furnished for the purpose of the work.
    3. Same—Extent of duty.
    
      Held, that the contract for machinery carried with it an obligation to furnish machinery fitted to and sufficient for the work, and that it should be kept in constant repair.
    3. Same—Convict may recover fcr injuries received through imPERFECT MACHINERY.
    
      Held, that in case of injury received by the plaintiff through the defective condition of the machinery, without negligence on his part, he was entitled to recover damages.
    Appeal from a judgment entered on a verdict of a jury, and from an order denying a motion to set aside the verdict and for a new trial.
    
      D. WCNorthrup, for resp’t; Charles J. Patterson, of counsel; W. C. Beecher, for app’lt.
   Barnard, P. J.

plaintiff was a convict in the Kings county penitentiary. The defendant is a corporation. The county authorities let and farmed out to the defendant a large number of convicts, to be employed in making boots and shoes.

The defendant hired the labor and service of the convicts. The plaintiff was one of the men included in the contract. The prison authorities, by its terms, were to enforce the performance of the day’s work, and the defendant was to furnish all the tools, machinery and stock necessary for the employment. The plaintiff, while using one of the machines designed to mould the soles of shoes, was injured.

The action is based upon an allegation that the machine by which the convict was injured was out of repair and dangerous. While the usual relation of master and servant did not exist because the labor furnished was compulsory, the defendant must be held to have owed a duty to the convict in respect to the machinery to be furnished for the purpose of the work.

This follows from the covenant itself: A contract for machinery carries with it an obligation to furnish machinery fitted to and sufficient for the work, and that it shaE be kept in constant repair. The contract, it is true, was with the county of Kings, but the convict was essentiaEy a servant of the defendant. By his crime he lost the power over his own freedom to contract and labor, and his services were let out to defendant as minors and apprentices are let out by the authority of a temporary superior.

He was defendant’s workman, though his wages went to the county of Kings.

The case fuEy establishes that the machine was out of order. The machine has a roEer which is essential to its proper working. This roller was worn out.

It was not round, and in consequence thereof the stem was forced up before it should be, and the machine prematurely and without warning closed.

The evidence of both parties agree in this respect.

The direct testimony of the plaintiff who alone speaks of the accident, and the testimony of a witness for the defendant who testified that the use of emery sand, which was proven to have been used, indicated that the machine was out of order.

The verdict of the jury in favor of the plaintiff upon the issue as to the machine being out of order is sustained by the evidence. The plaintiff, therefore, had, if he was free from contributory negligence, a cause of action. Kain v. Smith, 89 N. Y., 375; Stringham v. Stewart, 100 id., 516.

Contributory neghgence is usuaEy a question for the jury, and this was a case upon which the evidence was not only satisfactory, but upon the evidence of the defendant was such that it was susceptible of different deductions.

The convict wás doing his work at the machine when the roEer slipped and the machine became Hable to close. The mould went out of place from the clipps of the roller. The convict attempted to replace it and the machine suddenly closed and smashed his finger. The evidence tends to show on both sides that this disordered machine gave notice of the disorder before it closed, and the contributory negligence consists in this fact. The answer to this, as matter of law, is that it was not uniform, it was likely to close.

The jury were to pass upon the question, especially as a portion of the evidence consisted of a model of the machine which was shown to the jury. Hawley v. Northern Central R. R. Co., 82 N. Y., 370.

Under the findings of the jury the case is a hard one. A convict is forced to work upon a dangerous machine and out of order.

The defendant’s foreman knew of the liability to injury, and made no repair.

The man kept on until he was injured by this defect.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  