
    Matthew J. McCarragher, an Infant, by Guardian, Resp’t, v. William H. H. Rogers, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 3, 1890.)
    
    1. Master and servant—Negligence—Evidence of former injuries.
    In an action to recover damages for injuries received while operating a machine belonging to defendant, the evidence was that on two occasions before the accident, and before plaintiff was employed, the table on which plaintiff was compelled to sit was thrown out in the same manner as in this instance, and on one of those occasions an injury was sustained. Held, that whether this was notice to defendant that the machine was out of order was a question for the jury, and if they found that it was then defective, they might by reason of the lapse of time have found that the defendant was chargeable with notice of it.
    3. Same—Evidence—Carelessness.
    The conduct of a person as to exercising care in his actions is susceptible of such description as to' convey information of it to common understanding, and to enable the jury intelligently to determine it, and the evidence of witnesses in relation thereto must be confined to a statement of facts, and opinions or conclusions derived from them are not competent.
    15. Same—Care required of a minor.
    As applied to a child, the responsibility in regard to dangerous or defective machinery depends upon the appreciation of danger which knowledge of the condition will necessarily give; but there is no error in such a case to refuse to charge that “ if the machine was a dangerous one or defective, and the plaintiff had knowledge of its dangerous or defective character, and defendant was not guilty of actual negligence, then the plaintiff cannot recover.”
    (Parker, J,, dissents.)
    
      Appeal from judgment of the general term of the supreme court in the second judicial department, affirming judgment entered on a verdict in favor of the plaintiff
    
      Arthur R Robertson, for app’lt; James D. Bell, for resp’t
    
      
       Affirming 8 N. Y. State Rep., 847.
    
   Bradley, J.

The plaintiff received an injury, resulting in the amputation of his right leg, while he was in the service of the defendant in the paper box factory of the latter, in the city of Brooklyn. The plaintiff was engaged at the printing and stamping press, and his business was to take from the cylinder sheets of straw board as they came from the machine prepared for boxes. In doing this work he sat upon a table two feet in width, extending across that end of the machine and parallel with the cylinder from which the sheets were taken as they came from the press. He sat with his right side towards the cylinder, his feet on the table, and his associate in the work sat facing him on the same table with his feet also upon it This was the position required to do their work. The table was supported by the projecting sides of the machine, in which were slots, which laterally held the table to its place, but there was nothing to hold it down except the weight of and upon it When the machine was in motion the cylinder revolved and the moving press plate passed under the table and back and forth with rapidity, and under the table were also the plungers which operated the bed-plate. The velocity of the cylinder was considerable, and it brought out rapidly the scored and pressed sheets produced from the material with which the machine was fed at the other end. The operation of the cylinder and bed-plate was such that if the foot or hand of the workman should be caught in between them it would be seriously injured. The plaintiff’s right foot in some manner was caught there, breaking and mutilating it and the lower part of the leg so as to require amputation just above the ankle joint. The questions presented were whether the accident was attributable to the negligence of the defendant, and whether the plaintiff was free from fault The evidence bearing upon those questions was conflicting. The evidence on the part of the plaintiff was to the effect that without his fault the table on which he sat was, by some irregular operation under it of the bed-plate or plungers, suddenly thrown up out of the sockets, in which it rested, in such manner as to bring his foot in contact with the moving machinery, which caused the injury. The plaintiff was about thirteen years of age. The other boy on the table jumped from it. The fact that the plaintiff sustained this injury did not charge the defendant with liability unless it was caused by his negligence, and that was dependent upon the fact, first, that the machine was out of order, and second, that he had or was charged with notice that it was so.

The evidence upon that subject was that on two occasions before this accident and before the plaintiff went there to work the table was thrown out in the same manner as in this instance, and on one of those occasions an injury was sustained. Those were the only times, so far as appeared during the period of eight years the press had been in use there, that the table was displaced while the work was going on. And if there was no cause for it other than in the operation of the machinery, it was some evidence of a defective or imperfect condition, which was liable to place in jeopardy the boys engaged at work upon the table, and would seem to call either for reparation of the movement of the machinery, or for some means of guarding against injury to those employed in that particular service. It seems that in sitting on the table the legs of the boys were necessarily extended with their heels resting on the table and their feet upright. There was what was called a fly-bar from which the sheets as they came from the cylinder were taken. This bar was at or near the inner edge of the table, and whether it was low enough to stop the foot while so standing of the workman from going into the machinery, was a disputed question. At all events, it would not have that effect when the foot was in any other position on the table; and there was evidence tending to prove that protection may have been given by a net work or some guard placed near the inner edge of the table without causing inconvenience to the service. This means of giving comparative safety against danger was, in view of the liability to injury from the defective operation of the machine (if such were the fact), entitled to some consideration on the question of the defendant’s negligence, if he had notice of such condition. His duty was to use reasonable care to provide his employees with suitable machinery for the service in which they were engaged, and due care in keeping it in order. His attention had been called to the fact of the injury sustained by a bpy while on the table engaged in this work three months before the accident in question occurred. And whether that was any notice to him that the machine was out of order was a question for the jury, inasmuch as there was some evidence tending to prove that the accident then was caused by the negligence of the person injured, although that person testified that he was entirely free from fault. That accident was such as to permit the conclusion that it was the defendant’s duty to inquire into its cause, and that if the apparatus was not in proper condition in any respect the defect may by a careful examination have been discovered; and if the jury found that it was then defective, they may by reason-of the lapse of time have inferred and found that the defendant was chargeable with notice of it. There was sufficient evidence to take the case to the jury, and, therefore, the exception to the denial of the motion for nonsuit is not available to the defendant And this would be so if the facts supplied by evidence after the plaintiff rested and the motion was made were requisite to support the action. Painton v. N. C. R. R. Co., 83 N. Y., 7.

The witness, John Murray, the person who received an injury while working at this press about three months before the time in question, having stated that when he was injured he was sitting where the plaintiff did on the table, when his accident occurred, was asked, “ How did the injury occur to you? ” To which the witness, subject to the exception of the defendant, answered: “ It jumped out of the socket in the same way. I was sitting on this side when the press under the table came out. What happened to you ? I got my leg broke. Where did your leg go to? Into the bed of the press.”

The evidence was not important to show merely that another accident had previously occurred there, but its relevancy was in its bearing upon the question of the condition of the machine. It may, upon the evidence, be assumed that no change had been made in it after that time, and that in both instances it was located in the same place and was doing the same kind of work. It is true that the evidence might present a collateral question so far as to open-the way’to inquiry into the circumstances of the occurrence, with a view to the question whether it was properly attributable to the fault of the machine or of the witness. The evidence in its purpose was directed solely to the character of the press, and although the cases may not be entirely in harmony upon the subject, it was, in that view, competent within the rule as recognized in this state. Quinlan v. City of Utica, 11 Hun, 217, affirmed, 74 N. Y., 603; Pomfrey v. Village Saratoga Springs, 104 id., 459 ; 5 N. Y. State Rep., 802 ; Sheldon v. Hudson River R. R. Co., 14 N. Y., 218 ; Crist v. Erie R. Co., 58 id., 638; Crocker v. McGregor, 76 Me., 282; 49 Am. R., 611; Maggi v. Cutts, 123 Mass., 535.

The question was one of the weight of the evidence and whether it was entitled to any consideration, rather than of its competency. A witness who was in the service of the defendant was called by the latter, and asked to state whether, from his knowledge of the plaintiff’s conduct while at the press, he was generally careless or careful; also whether or not, from what he saw of the plaintiff just at the time of the accident and before it occurred, he was acting in a careful or careless manner while sitting at the press. The evidence thus offered was excluded and exception taken. It did not appear that the witness was present at the time of the accident or saw its occurrence. He had been there shortly before and observed the conduct of the plaintiff, to which he testified^ Whether the plaintiff was careless depended upon the manner he conducted himself, and when that appeared the conclusion whether "the accident or injury was to any extent attributable to his want of care was for the jury, and that was a question upon the determination of which the result of the action was dependent. It was ■ not one for expert evidence resting in opinions of witnesses. The fact of care or carelessness of the plaintiff was not one involving any question of skill or science to determine, nor was it founded upon any knowledge peculiar to any class of persons. His conduct as bearing upon the question of care or want of care was susceptible of such description as to convey information of it to common understanding and to enable the jury intelligently to determine it and the relation it had to the accident. In such case the evidence of witnesses must be confined to a statement of facts, and their opinions or conclusions derived from them are not competent. And the numerous cases cited by the defendant’s counsel do not seem applicable to the question here. Van Wycklen v. City of Brooklyn, 118 N. Y., 424; 29 N. Y. State Rep., 790; Schwander v. Birge, 46 Hun, 66; 10 N. Y. State Rep., 802, and cases there cited. The evidence of this witness as to what he saw a short time before the occurrence tended to prove that the attention of the plaintiff was more or less diverted from his work, and this was properly matter for the consideration of the jury as bearing upon the question of the care he exercised when he was hurt shortly after, although it may not necessarily have characterized his conduct at that time. There was evidence tending to prove that the plaintiff had been informed of the previous injury to Murray while the latter was at work there. The plaintiff testified that he did not know that it occurred upon this machine. In view of this evidence the court was requested to charge the jury “ that if the machine was a dangerous one or defective, and the plaintiff had knowledge of its dangerous or defective character, and defendant was not guilty of actual negligence, then the plaintiff cannot recover.” Whereupon the justice presiding remarked : “I will not charge you that in those terms, but I will charge you this ; ordinarily if an adult, a grown person, is aware of a defective piece of machinery and is set to work with it, and continues to work with it knowing that it is out of order, he takes the risk upon himself. This applies to minors also with certain qualifications. The law does not require from a boy of thirteen the same mature judgment which it does from a grown person; and if he knew that it was out of order whether or not it was negligence on his part to go to work with it is for you to say. With a grown person negligence on his part would be a legal proposition, which the court would determine, but with a child it is for the jury to say.” Exception was taken to the refusal to charge as requested “ and to the qualification of the same by stating that the boy was not bound to exercise the same diligence in inspection as any other person.” The contention of the defendant’s counsel, founded upon this exception (assuming - that the machine was dangerous or defective), is that the plaintiff’s knowledge of its dangerous or defective character imposed upon him the same, degree of responsibility as is applicable to an adult, and that the distinction between them in that respect in favor of a child is back of that and founded, upon the supposition that the latter may not have the knowledge which ordinarily comes with more mature years. This may be true in a qualified sense, although not absolutely so. As applied to a child that responsibility depends upon the appreciation of danger which knowledge of the condition will necessarily give.

The plaintiff knew that if his foot got into the machinery it would be injured. So far his knowledge required him to be sensible to danger. This was apparent to him. And so far as danger was known and obvious to him, the boy .may have been legally as responsible for his own protection as a full grown person. Hickey v. Taaffe, 105 N. Y., 26; 6 N. Y. State Rep., 426; Buckley v. G. P. & R. M. Co., 113 N. Y., 540; 23 N. Y. State Rep., 618. But the proposition which the court was requested to charge went further than that, and by it the contributory negligence was treated as a question of law if the plaintiff had knowledge that the machine was defective in character. To this must have been super-added knowledge of the consequences of the defect, which a person of mature years might be assumed to have. But is that rule necessarily, and as matter of law, applicable to one of tender age? It was not necessarily an obvious condition of danger; but was matter of some reflection and judgment to appreciate the consequences which might result from the defective character of the apparatus. For that reason the premises of the proposition, if found by the jury, would not have taken the plaintiff’s case out of the ordinary rule applicable to a person of immature years, that the question of his contributory negligence was for them to determine. Haycroft v. L. S. & M. S. R. R. Co., 2 Hun, 489, affirmed 64 N. Y., 636 ; Thurber v. H. B. M. & F. R. R. Co., 60 N. Y., 326; Byrne v. N. Y. C., etc., R. R. Co., 83 id., 620; Barry v. N. Y. C. & H. R. R. R. Co., 92 id., 289. It is unnecessary to, and we do not consider the effect to which the proposition would have been entitled if it had been founded solely upon the fact that the plaintiff had knowledge that the machine was dangerous by reason of its defective character. There was no error either in the refusal to charge as requested, or in the charge as made in response to the request. The question of the defendant’s negligence, with ample instruction, had been submitted to the jury, and they were well advised by it that such negligence was essential to support the action. All the exceptions taken on the trial have been carefully examined; and none other than those before mentioned seem to require any expression of consideration. There was no error in the rulings to which they were taken. The judgment should be affirmed.

All concur, except Parker, J., dissenting, and Haight and Brown, JJ. not sitting.  