
    David G. Decora, an Infant, by Gervis G. Decora, His Guardian ad Litem, Respondent, v. American Carbide Company, Appellant.
    Third Department,
    December 30, 1909.
    Blaster and servant — negligence — injury by punching press — erroneous charge as to defective appliances and failure to instruct—.negligence of fellow-servant — contributory negligence — Employers’ Liability Act — assumption of risk of negligence of fellow-servant.
    In an action under'the Employers’ Liability Act, brought to recover for injuries to the plaintiff’s hand, which was caught between the dies of a punching press, it appeared that he left his machine temporarily and on his return found a fellow-servant operating it.- The fellow-servant continued to operate the lever which ■ controlled the machine and at his request the plaintiff removed the covers from the lower die after they had been cut. When the lever was pressed the . upper die Would drop, and if the lever was held down the upper die would drop, thirty-four times a minute. It appeared that the foreman passed and saw the manner in which they were operating the machine. Evidence examined, and
    
      Held, that it was error to instruct the jury that they might find for the plaintiff if . they found his fellow-servant had not been properly instructed as to the consequences of keeping his foot on the lever, for lie must have discovered that by experience;
    That the irresistible inference is-that the fellow-servant unconsciously pressed the lever, causing the die to drop;
    That the plaintiff was guilty of contributory negligence in working on the machine while another had control of the lever, arid it is immaterial that the foreman did not warn them of the danger for it was obvious.
    There was no proof that the machine was out of order or in any abnormal condition, but the court charged the jury that they might find for the'plaintiff if ' they found some abnormal condition in the machine, concerning which the defendant was negligent, and against which the plaintiff should have been warned. ' "
    
      Held, error. The jury must not be allowed to speculate as to the defect which might have caused the accident; nor is the master called, upon to give warning of the possibility of danger from a machine getting out of repair, unless there be some proof of a reasonable ground to anticipate such an emergency.
    The negligence of a fellow servant was one of the necessary risks assumed by the plaintiff in entering defendant’s employment.
    Kellogg, J., dissented, with opinion.
    Appeal by tiie defendant, the American Carbide Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the ,17th day of May, 1909, upon the verdict of a. jury for $1,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles J. Vert, for the appellant.
    
      Weeds, Conway da Cotter \T. B. Cotter, of counsel], for the respondent.
   Smith, P. J.:

Plaintiff has recovered a judgment of $1,000 for an injury sustained in the defendant’s factory and claimed to have been caused by the defendant’s negligence. The injury was to four fingers of his left hand, which were caught between two dies upon the punching press. This punching press was for the purpose of shaping the heads of tin cans. It was worked by a lever under the machine and at the right. By pressing on that lever the upper die would drop over the lower die, making the impression, and then recede. If the pressure be continued upon the lever the action is continuous, and the upper die drops upon the lower die thirty-four times a minute. If the pressure be released the power is- taken from the die and it does-not drop again until the pressure is again applied. The plaintiff had worked upon this machine a short time before the accident. The course of his work was to take a cover which was unformed and put it over the lower die, press the lever, causing the upper die to drop upon the coyer and give it shape, and after the die receded to take out the shaped cover and the fringe of tin that had been cut off. He had thus shaped from twenty-five to thirty covers and in some way cut his hand upon the tin. He stepped aside to bind his hand and upon going back he found his coemployee Wemette operating the machine. Wemette asked him to assist him and the plaintiff took a seat at his left and for a time laid aside the covers after they were formed, which Wemette had taken out. Thereafter Wemette asked him to take the covers out from the dies after they were shaped. In this way the two worked for about half or three-quarters of an hour, when in removing one of the covers, after it had been shaped, the upper die came down and crushed the four fingers of his left hand. Notice was served under the Employers’ Liability Act and this action was commenced.

It will be seen that the plaintiff at- no time had control of this lever which Operated these dies. That was always under the foot of .his coemployee Wemette. The learned trial judge told the jury that this accident might have happened in three ways: First. Wemette may have pressed the lever- for a second time, which caused the upper die to drop upon the plaintiff’s hand, and if so, the plaintiff could not recover, because he was injured by the negligence of a coservant. Second.' Wemette may have retained his foot upon the lever and thus allowed the lever to drop a second time, causing the accident;- in which case the jury were- instructed that they might find for the plaintiff, provided that they should find that Wemette was not properly instructed by the master as to the consequences which would follow from his retaining his foot upon the lever. Third. That some dust or dirt may in some way have accumulated in the machine so as to have prevented the release of.the clutch when the foot was raised from the lever, and thereby have caused the die to continue to drop. As to the last possibility the court in substance charged: If it be true,' as testified to by- the plaintiff and some of his witnesses, that the second descent of the die; the repeating of the operation of stamping, was not caused by Wemette at all, but by some abnormal condition in the machine, then it might be that that was a condition of which the plaintiff would not know and against which he should have" been warned. In these two instances there might be a recovery provided the members of your body think the conduct of the officers of the defendant towards this plaintiff in the matter of instruction was not the conduct of men of reasonable prudence, who have a just regard for the safety and welfare of their employees.” It would hardly be just to the defendant to allow thé jury to speculate that there might be some abnormal condition of the machine that might have caused this die to continue its operation and thus cause the accident. The case is barren of proof that this machine was out of order, or had become in any abnormal condition. If the machine had become in fact defective there is no proof whatever that the master hád had any notice of such a defect, so as to impose upon him any duty of repair or care. From all the evidence in the case up to that time, and ever since, the machine worked perfectly, as it was intended, to work. The duty which rests upon a master to furnish a servant with safe appliances is violated by lack of repair only when the master had notice, or might with reasonable diligence have ascertained the need of repair. Nor is the master called upon to warn employees of the possibility of danger from a machine getting out of repair without some proof, giving reasonable ground to anticipate such an. emergency. In this case there was not the slightest proof of such a danger.

But the main ground upon which this judgment is sought to be sustained is for failure of the master to warn Wemette that by retaining his foot upon the lever the .press would continue to operate and the die would continue to drop. In this, however, the plaintiff encounters several difficulties. In the first- place Wemette swears twice in his evidence that he did not know whether his foot remained upon the lever or not at the time it came down and caused the injury. He afterwards swears positively.that his foot was upon the floor and not upon the lever. If so, the failure to warn Wemette of the danger of retaining his foot upon the lever was not the cause of the accident. Again, it would be impossible to work that machine as much as either Wemette or plaintiff had worked it, without learning that the foot must be quickly released in order to prevent a repetition of the stroke. With the machine operating thirty-four times in a minute the operator cannot easily work between those dies without learning that fact either by warning or éxperience. Still again, the plaintiff himself twice swears that at the time he put his hand in to take out the cover tjie upper die was stationary. Now if there had been any flaw in the machine which prevented the lever when released from springing back, or if the second impact had been caused by Wemette retaining his foot upon the lever, that upper die could not have been stationary. It would have operated continuously and more rapidly than every other second, and if it had been so operating the plaintiff never would have put his hand between the dies to get the cover out. If the plaintiff’s evidence be true and this upper die was stationary even for a second, the irresistible inference is that Wemette must unconsciously have pressed the lever, and thereby caused the die to drop. His evidence to the effect that his foot was upon the floor, after having twice before and upon the day previous sworn that he did not know whether or not his foot was upon the lever, is not sufficient to overcome the natural inferences as to the cause of the accident.

Moreover, it was,gross negligence in the plaintiff to undertake, that work while another fpan had control of the lever. That machine was never intended to he used in this way. The plaintiff was never directed so to work. It is true that both he and Wemette swore that the foreman came through the room while they were. so. working and did not object. His failure to warn the plaintiff of the danger in thus operating the machine could not make the master liable, because the danger was an obvious one, as clearly seen by the plaintiff as by the foreman. And the risk of injury through the negligence of a coemployee was one of - the necessary risks assumed by the plaintiff in entering the defendant’s employment. The notice of injury served under the Employers’ Liability Act specifies no 'such negligence as a cause thereof. Mor was such negligence submitted to the jury as a ground of recovery.

We are of the opinion that .the judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred, Cochrane, J., in. result, except Kellogg, J., dissenting, in memorandum. 0

Kellogg, J. (dissenting):

■ Both the plaintiff and Wemette were green men and knew but very little about the operation of the punch press; they were not mechanics. They had not been told that two men should not work upon the press, and when the superintendent saw these green men working it, he talked with them and made no suggestion as to the impropriety of their action. The company, .therefore,- permitted them to work the press in an improper manner.

In the manner in which this press was operated, it.was necessary for the operator to put his hand between the upper and lower die to remove the plate which had been pressed, and to remove the parings or waste which had been left upon the lower die. The evidence tended to show, that a poppet or spring should have been provided to throw the plate up, and that the operator should have-a stick or little paddle to use in extracting the waste from between the dies, and thus avoid putting his fingers between them. If such a spring was not provided to throw out the plate, the little paddle would permit of its removal without putting the fingers of the operator between the dies. The only danger apparently accompanying the use of this press was that the hand or fingers of the operator might be caught between the dies, and the use of the spring and little paddle to extract the plate and waste practically avoided all that danger. The jury, therefore, had the right to say that the method which the defendant provided for operating the press was unusual and dangerous in itself, and that the plaintiff was not properly instructed as to the dangers or provided with the means by which they could be avoided.. I think, therefore, the judgment should be affirmed. .

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  