
    Frank Ladiew, an Infant, by James G. Tracy, His Guardian ad Litem, Respondent, v. Sherwood Metal Working Company, Appellant.
    Fourth Department,
    March 4, 1908.
    Blaster and. servant — negligence — injury to hand in punch press — negligence of fellow-servant — defects not proximate cause of accident.
    Where a punch press at which the plaintiff was engaged in placing and adjusting metal between the dies did not operate regularly, but only when a fellow-servant voluntarily brought the dies together, the plaintiff cannot recover for an injury to his hand, which was caught between the descending dies, on the theory that the master was negligent in allowing the machine to become defective because one of the pins against which the work was adjusted had broken away.
    The negligence in operating the machine when the plaintiff’s hands were between the dies was that of a fellow-servant, and, although the absence of the pin made it necessary to take a longer time to adjust the work, it was not the cause of the accident.
    In an action to recover for injuries so sustained it is error to refuse to charge that the plaintiff cannot recover unless the jury find that the proximate cause was the failure to supply the pin in question and that the accident would not have happened had the pin been in place.
    Such error is not cured by a subsequent charge that the" absence of the pin must have been the proximate cause of the accident.
    McLennan, P. J., and Spring, J., dissented.
    Appeal by the defendant, the Sherwood Metal Working Company, from a judgment of the County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of said county on the 21st day of June, 1907, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 2d day of July, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      White, Cheney, Shinaman & O'Neill, for the appellant.
    
      Joseph B. Murphy, for the respondent.
   Williams, J.:

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

The action is to recover damages for personal injuries alleged to have resulted from defendant’s negligence.

The plaintiff was an employee in the defendant’s screen manufactory and working upon a punch press at the time he was in jured. The press consisted of two dies, between which the metal binding strips were pressed into the metal frames. There ivas no wood in the frames. The lower die was stationary. The upper one was moved up and down by machinery. The operator of the press stood in front facing it. Ilis assistant stood back of the press, also facing it. The operator controlled the power. His assistant had nothing to do with it. The upper die being raised, the assistant took a binding metal strip Y shaped and put it in its place on the lower die, and took his hands away. The operator then put the metal frame in position against the binding strip, and by means of machinery lowered the upper die upon the lower one and pressed the screen parts together. There were two pins next the assistant at the bottom of the binding strip when placed in position, which operated as a barrier against which the binding strip was pressed by the screen when the latter was inserted between the dies by the operator. These pins were between the assistant and the binding strip when in position, and the operator pushed the screen against them. There were also two other pins in the lower die, one at each end of the binding strip when in position, so that the screen and strip would be in proper position as to each other whdn the pressing was done. The strips were supposed to be of the same length and to just fit in between these two end pins, but they were not always so, sometimes they were a little long. If then they could be pressed down between the two pins, that was done. If not the strip was taken out and thrown aside. Sometimes they were a little short, and then they had to be pressed up against the left-hand pin leaving the space next the right-hand pin. These two end pins were upon springs so that when the upper die came down they settled into the lower die, and when the dies separated they returned to their place again. A few days before the accident in" question the right-hand pin was broken away, and then the binding strips had each time to be pressed against the left-hand pin, when they were put in place by the assistant, and that was the condition of things at the time of the accident. The .plaintiff was the assistant, and when the dies came together, one of his hands was caught between them, and he received the injuries for which the action is sought to be maintained. It was the duty of the operator to wait until the assistant had removed his hands, after placing the binding strip, before he lowered the upper die. The assistant having once removed his hands, was not permitted to again put them between the dies. If for any reason the binding strip was discovered out of position, a screw driver which lay at hand was to be used to tap the strip into position. On the trial the plaintiff, the assistant, said the upper die was lowered before he took his hand out at all, and caught it, while the operator said the assistant put his hand back between the dies after he had once taken it away and after he had commenced to lower the upper die, and was thus caught. The upper die could not be stopped on its way down after it was once started.

If the operator’s evidence was correct on this question, then the plaintiff was guilty of contributory negligence, and could not recover at all. If the plaintiff’s evidence^was correct, then the operator, his coemployee, was guilty of negligence, but for this the plaintiff could not recover. The only theory upon which a recovery could be had would be that notwithstanding the negligence of the operator was the direct cause of the injury, yet it would not have occurred but for the negligence of the defendant in allowing the machine to be in a defective and unsafe condition, in that the right-hand pin herein before described was broken away and was absent at the time of the accident. But I am unable to see how the absence of this pin had anything to do with the accident. The die did not, go down of its own accord at regular intervals. Each downward movement was caused by the operator. There could be no regularity in the motion when the pin Avas there. Sometimes the strips were too long and would not go to their places without help of the assistant with his hand or by the use of the screw driver. Sometimes the strip would be too short and would have to be moved up against the left-hand pin by the help of the assistant with his hand or the screw driver. The operator was only to start the die down, after the strip had been properly placed and the hand or screw driver removed. A failure of the operator to Avait if necessary for this adjustment of the strip would spoil the strip or screen if it -did not injure the assistant. The only claim made in plaintiff’s behalf upon this question is that it would take longer to adjust the strip without the right-hand pin than with it, but I fail to see how that consideration leads to the conclusion that the accident would not have occurred if the pin had been present. The die was not to be lowered until the adjustment was made and the hands removed.

There was proof given and a good deal said by the court in its charge about the provisions of section 81 of the Labor Law, and those things may well have produced an impression upon the jury unfavorable to the defendant which was hardly removed when the court (upon being requested to give the defendant an exception to that part of the charge) by one sweep withdrew all of it from the jury and left to them only the liability from the defective machine.

This practice of giving the jury facts and instructions at length, which are by a single sentence eliminated at the close of the charge, is prejudicial to the defeated party and should not he indulged in. The charge without this matter might very well have led to a different verdict from the one rendered by the jury.

The court, moreover, refused to charge the following request: That the plaintiff cannot recover in this case unless the jury find that the approximate cause was the failure of supplying.the pin in question and that the accident would not have happened had the pin been in place.”

It did afterwards charge that it must have been the proximate cause, but that hardly cured the error of refusal to charge the request which was the only theory upon which a recovery could he had.

A reversal should be on the law and facts.

All concurred, except McLennan, P. J., and Seeing, J., who dissented.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event, upon questions of law and fact. 
      
       See Laws of 1897, chap. 415, § 81, as amd. by Laws of 1899, chap. 192; Laws of 1904, chap. 291. and Laws of 1906, chap. 366.— [Rep.
     