
    Frank Irvine, an Infant, by John Irvine, His Guardian ad Litem, Respondent, v. The F. H. Palmer Manufacturing Company, Appellant.
    
      Negligence—master and servant—failure to show that a machine was defective.
    
    In an action brought by a servant to recover damages resulting from injuries caused by the alleged negligence of the defendant, the plaintiff's evidence tending to show that he was injured by reason of a plunger in a power press (moved by the pressure of the foot upon a treadle), having moved without such pressure being applied, was contradicted upon every material point.
    The defendant proved that the machine had been in use about a year; that six months before the injury, and again just prior to the trial, the manufacturer of the machine had examined it and found it in a safe condition; that from the principle of its construction it was apparent that the punch .could not come down of its own motion a part of the way and then return to its place, as it was claimed by the plaintiff that it did; that there was no defect in the parts of the machine, these having been produced in court.
    
      Held,, that the proof given upon the part of the defendant overcame that offered by the plaintiff, and that a judgment for the plaintiff should be reversed.
    Appeal by the defendant, The F. H. Palmer Manufacturing Company, from a judgment of the City Court of Brooklyn in favor of the plaintiff, entered in the office of the clerk of said court on the 27th day of May, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of June, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      William, G. Beeeher, for the appellant.
    
      Charles J. Patterson, for the respondent.
   Hatch, J.:

This case differs from the Fox case (ante, p. 61), decided at the present term. In that case, the question arose upon the assumption of risk, and contributing negligence of plaintiff. Here, the question arises upon the .negligence of the defendant. The machine is in all respects similar to the machine in the Fox case, except that it is larger. It is operated in the same manner and the injuries were received in •substantially the same way and, as is claimed; from the same cause. It is claimed by plaintiff that the machine is defective; that it clicked while in operation, which indicated the defect; that lie had called the attention of the machinist, whose duty it was to repair the machines, to the;. fact of its clicking; that the machinist had tightened it up and told him to go on and use it. Plaintiff was employed on the machine three days; he testified that on the second day the punch came down without pressure on the treadle. On the next day in the morning, it came down" about an inch without pressure on the treadle, and on the afternoon of this day it came down in like manner without pressure and inflicted the injury.. He is supported by the testimony of One witness respecting the fall of the punch on the second day. There is no controversy over the fact-that the master in the first instance discharged his full duty by furnishing a perfect machine, and-if .the recovery is-to be-sustained, it must be upon--the ground tliat defendant is guilty of culpable negligence in failing to keep the machine-in proper repaii'. The testimony of plaintiff and his witnesses was contradicted upon every material point in.the case, both as regards the clicking-as a fact and as evidence of a defect, and also as to any defect in the'machine in fact. If this testimony rested simply upon the oral statements of witnesses, there would be little, if any, doubt that a case was made for the jury. But defendant went farther. It is established that the machine had been in use but about a year; that, six months prior to the injury, the manufacturer of the machine examined it and found, it at the time in a safe condition.- Just prior to the trial, he again examined it and found nothing defective. Defendant produced the parts of the machine claimed to be defective in court,. together with a model which showed clearly its mechanism- and principle of operation, and the same were exhibited to the court and jury. The inspector of the manufacturer of the machine was called as a witness'and explained its mechanical. construction and principle of operation. No discredit was cast upon this-witness, nor are his statements substantially contradicted. From the principle of its construction' and operation, it is. clear .that the-punch coiild not fall a part of the way and then return to its place. Once the' clutch locks the axle to the wheel and the motion must be continuous, up and down, until it is released, either by throwing the clutch out of position or shutting off the motive power. No partial" automatic, motion of the machine could take place. The parts of the machine produced were in and of themselves perfect. There was no break, and nothing about them suggested that they were not im the same condition as when first applied to the machine, except a slight wear upon-the clutch, but that this did not indicate a defect or subject its operation to any change tending to make it automatic in movement. The' appearance of the parts, the character of construction and the principle of operation of the machine, all tended to the corroboration of the witness. He was also corroborated by the testimony of Clark, a machinist in defendant’s employ, and by Roesrer, a machinist who had formerly been in his employ. It was further shown, by persons who had operated the machine before and after the in jury to plaintiff, that no difficulty had ever been experienced with it, but that it worked as it was expected, and had been, in continual use without repair since the injury, and since it was first placed in defendant’s factory. I am of opinion that this proof must be accepted as sufficiently cogent to overthrow the case made by plaintiff. Its effect is to establish, by a practical demonstration of mechanical construction and principle of operation, that the punch could not fall in the manner described by automatic action. With this demonstrated the statements of witnesses in contravention thereof must be disregarded, otherwise oral statements must be held to have more force than the certain actipn of immutable laws. I have not overlooked if I have not adverted to the testimony of William Burke, an expert witness called by plaintiff. He was formerly in the employ of the manufacturer of the machines, and left such employ about eight years ago. He states that the clicking of the machine is caused by the wear down the inside of the pulley, and that the clicking indicated that the mandrel or punch is likely to come down without pressure on the treadle; that the wear causes loss of motion. He assigns four specific reasons why the punch is liable to fall: First, by the breaking or wearing off the upper edge of the latch. Second, by breaking off or wearing off the surface of the clutch. Third, if the hole in the driving Avheel is worn too large. Fourth, if the wear and tear of the machine is such that the set screws get slack it will cause a vibration and lateral motion, and. let the punch down of its own weight. It is evident from this testimony that very much of it relates to possibilities, and has no practical bearing upon the real issue in the case. There was no evidence whatever that any of the conditions existed which he assigns in his third and fourth reasons. As. to the first aiid second there was no evidence of any breaking,, indeed, the evidence was that it was not broken. It, therefore, comes to the proposition, was there any evidence of a wealing of either latch or clutch, sufficient to cause an automatic fall? Upon this point lie was finally recalled, and says that the bar was worn from coming in contact with the clutch. This is the first time that any person had spoken of the wearing of the bar. Prior to this it was the clutch or latch that wore. And as his final statement he gives it as. his opinion that because the bar has not worn uniform it accounts for the click and constitutes a defect. This evidence finally .leaves the case to stand upon the question , of the wear on one side of this bar as sufficient to carry the-case-to. the jury. . I think it insufficient, in view of the other testimony in the case. It is not a fact that is here testified to, but simply .an opinion. The instrument is produced, and all the wifi ■ nesses who were called to speak upon the subject made no mention of it as constituting a defect. Burke himself made no mention of it when first "called, and the piece is produced for the' court’s inspection, and shows scarpely a perceptible wear. Giving it full force it amounts to no more than a scintilla of proof which has long since been disregarded by the -courts. ■ I think, as matter of law, that defendant has fairly met the case of plaintiff and established facts which do not warrant the inference of negligence in the respects claimed. Nothing in Van Sickel v. Ilsley (75 Hun, 538) and Hayes v. The B. & D. Mfg. Co. (41 id. 407) conflicts with this conclusion. The first was decided upon conflicting testimony; the second involved a disobedience of rules and contributory negligence..

It follows that the judgment and order appealed from should be-reversed and a new trial ordered, costs to abide the event. -

All concurred.

Judgment and order, reversed and new trial ordered,, costs to abide the event.  