
    Henry Sigel, Respondent, v. American Seating Company, Appellant.
    Fourth Department,
    March 4, 1914.
    Master and servant — negligence — injury to employee while working upon “ shaper ” — guarding of knives — instructions to plaintiff— defective condition of machine — evidence.
    In an action for personal injuries sustained while working in defendant’s factory upon a “ shaper,” which consists of a flat table at the back edge of which is set vertically a revolving shaft in which are inserted several small knives, protected by a circular wooden guard, it was sought to establish the negiigenee of the defendant upon three theories, i. e., insufficient guarding, inadequate instructions to plaintiff, and a defective condition of the machine. Evidence examined, and held, sufficient to sustain the verdict of the jury in favor of the plaintiff.
    Robson and Merrell, JJ., dissented.
    Appeal by the defendant, American Seating Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 24th day of June, 1913, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 24th day of June, 1913, denying defendant’s motion for a new trial made upon the minutes.
    
      Clinton B. Gibbs and Layton H. Vogel, for the appellant.
    
      Dana L. Spring and Michael M. Cohn, for the respondent.
   Lambert, J.:

The action is in negligence and the plaintiff has had a verdict. He was injured while working upon a “shaper” in the defendant’s factory, suffering the loss of three fingers of his right hand. His regular work was not upon this machine, but-upon a few occasions he had been there put to work by his foreman.

The “ shaper ” consists of a flat table, at the back edge of which is set vertically a revolving shaft in which are inserted several small knives. Along the back edge of the table is a guide strip, slightly raised above the table top.

The work in hand, at the time of this accident, required the operator to hold the hoard being trimmed flatly upon the table top and against the guide, and then to shove same along the guide and upon the table top until the work came into contact with the revolving knives. The work was held in place and moved forward by the hands of the operator held flatly upon it.

As a means of protection to the operator a circular wooden guard was arranged completely covering the knives, except that sufficient space was left between the bottom of the guard and the top of the table to permit the passing of the work underneath the guard and against the knives. With such a guard in proper adjustment, the operator could not possibly get his hands upon the knives, providing he held the work flatly upon the table and closely against the guide.

The negligence of the defendant is sought to be predicated upon three theories, i. e., insufficient guarding, inadequate instruction to plaintiff, and a defective condition of the machine itself. Each of these grounds of negligence was submitted to the jury, and hence this appeal involves the sufficiency of the evidence to sustain the verdict of the jury upon each.

As to the guarding, it is conceded that if the guard produced upon the machine at the trial is the one thereon at the time of the accident, and had the same adjustment, then that plaintiff could not have been injured if he held the work in proper position. There would not then have been sufficient room between the top of the work and the bottom of the guard to admit his fingers to the knives. He and several of his witnesses testify that plaintiff did hold the work in proper position, flatly on the table and against the guide, and it is conceded that he did get his hand against the knives. Then, too, the witness Haas testifies that he was present, and at once following the accident measured the distance between the top of the table and the bottom of the guard; that he found such measurement sufficiently large to admit both the work and plaintiff’s fingers at the same time. In such testimony he is supported by the witness Bogarke, who testifies to having witnessed the measurement as taken. If the guard (assuming it to be the same one produced at the trial) was adjusted as this testimony indicates then it cannot be seriously urged that it was sufficient as a guard. So far from affording any protection, it actually increased the danger to the operator. It was effective only in concealing the knives from view, and afforded no protection whatever. ■ •

It is true that many witnesses identify the guard produced upon the trial as the one on the machine at the time of the accident and testify that its adjustment is the same, but it is apparent that such testimony rests largely in a general recollection of appearances rather than in specific identification. The credibility of all the witnesses, including Haas and Bogarke, was for the jury, and if they believed those two witnesses, then they were justified in finding either that the guard upon the machine at the time of the accident was not that produced upon the trial, or, if the same, that it was then differently adjusted. Either conclusion is sufficient to sustain the jury verdict, and clearly a jury question was presented.

As to the instructions given, it appears that “ Polish Frank,” the foreman,' told plaintiff to stand at the side of the table, so as to push the work away from his person, past the knives. In this connection the witness Eohlfs, called as an expert, testi’fied that such was an improper position as it brought the hands of the operator into closer proximity to the knives than would a position in front of the table. Quite obviously this is true, and there was no error, therefore, in the submission of the question of instructions.

As to the defective condition of the machine, Haas testified that the babbiting of the boxes upon the shaft was so worn that the shaft ran loosely and “rattled.” Several other witnesses also testified that it did rattle when in operation, and that it would not, if in good condition. It also appeared, without objection, that shortly after the accident it was repaired. It is quité apparent that if this shaft was revolving loosely in its boxes, the result would be an uneven and jerky- movement of the knives and attendant and resulting difficulty in holding the work in place. This question presents no difficulty:

We are urged to hold that plaintiff assumed the risk of such an accident as this, from the nature of his employment, and to reverse the judgment and order for that reason. It is now well established that, under such circumstances as here present, a servant assumes those risks, and those only, which remain attendant upon the employment after full performance by his employer of all his obligations to safeguard his employee. (Fitzwater v. Warren, 206 N. Y. 355.) Thus it is made plain that the question of assumed risk is here dependent upon the question of fact as to sufficient guarding, and the jury having found favorably to plaintiff, no question of assumed risk remains. . .

Defendant further argues that the evidence shows plaintiff guilty of negligence contributing to the accident. . Such contention is based upon the claim that the plaintiff permitted the work to slip off the table, thus leaving space for his fingers to reach the knives, under the guard, with the guard in .proper adjustment. In this connection, the frequent statement of, plaintiff, that he did not know how the accident happened, is seized upon by defendant. Of course it is true that upon the question of defendant’s negligence plaintiff must point out the manner in which the accident happened. But this statement by plaintiff is not to be given the sweeping effect claimed by the defendant. Plaintiff evidently did know, for he testified that he held the work in proper place, and from that evidence, supported by the other testimony in the case, the jury. might find such to be the fact. And even though plaintiff was unable to recall the rapid sequence of events and to trace cause and effect to the resulting injury, that failure of recollection should not of itself prevent his recovery. It is a fair inference that the injury to plaintiff occurred at practically the same moment that the board upon which he was working went off the table, and it was a fair question for the jury in the light of all the proof to determine the sequence of events and what was the cause and which the effect. The burden of showing plaintiff’s contributing negligence was upon' the defendant. Here, as in all negligence cases, the plaintiff’s proof of the accident involves to some extent the basis for the charge of contributory negligence. But, with all the proof in the- case, if an inference is justifiable therefrom, which exculpates the plaintiff from the charge of negligence, then a question of fact is presented for the jury. It cannot be said that the evidence in this case so clearly meets the burden imposed by law upon the defendant in that particular that we can hold plaintiff negligent as a matter of law or that the verdict reached1 is contrary to the weight of the evidence.

The" record presents a single exception requiring mention. The court was asked to charge that if the jury found that plaintiff met with the injury, by getting his hand under the guard and into the knives at a time when the board was not upon the table the verdict must be no cause of action. This request has no foundation in the facts. But one witness besides plaintiff saw the accident. This witness, Schwartz, sworn by the defendant, testified that he saw plaintiff’s hand drop onto the knives and the board went onto the floor. This witness says “ he slipped on to the knives and the top dropped and while he slipped it seems he got nervous and he dropped the top with Ms left hand and his hand went into the knives.” It is apparent from this and other testimony from this witness that the dropping of the board from the table and the injury to plaintiff’s right hand were practically simultaneous occurrences resulting from the same producing cause. There is no evidence in the case that plaintiff’s hand slipped into the machine after the board had fallen to the floor. The court was, therefore, justified in declining to instruct the jury as requested.

The judgment and order should be affirmed, with costs.

All concurred, except Bobson and, Merrell, JJ., who dissented.

Judgment and Order affirmed, with costs. •  