Opinion
June, 1905.
Frank Verner Johnson, for the appellant.
Albert J. Elrod, for the respondent.
The defendant appeals from a judgment entered upon the verdict of a jury in favor of the plaintiff and from an order denying a motion for a new trial, in an action brought to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the negligence of the defendant.
The decedent was a lad of about sixteen years of age, who had been in the employ of the defendant for about six weeks prior to the happening of the accident out of which this action arises. It appears in evidence that Antonio Scialo, the intestate, was during the time of his employment, engaged in work of a general character, such as washing presses, sweeping the floor and sitting behind a bronzing machine in the workshop of the defendant. In that shop there was machinery operated by electricity. There was shafting through the shop and belts were attached to that shafting. On the day of the accident the machinery on the fourth floor (on which the accident happened) was being operated by means of a belt which connected the shafting with a motor on the third floor, and there were belts running over the shafting to several machines. While the shafting was in motion, the defendant's foreman attempted to repair a belt used to connect a machine on the floor with a revolving shaft overhead. The foreman and one Thomas Gavigan, an employee of the defendant, were engaged in that work, but being unable to repair the belt without more assistance, the foreman sent for the plaintiff's intestate for additional aid. The belt was not working over a pulley, but was detached therefrom. Gavigan held the belt below — that is on the floor — the plaintiff's intestate was on a stepladder three or four feet below the shaft, holding the belt in his hands. The belt did not touch the shaft nor the pulley on the shaft. While the three persons were thus situated, and before the repairs to the belt were completed, it was suddenly drawn from the hands of the foreman and Gavigan, and the plaintiff's intestate was in some manner caught by the shaft and was seen revolving with it. The machinery was stopped, and it was found that the plaintiff's intestate sustained injuries from which he died a few hours afterwards.
There is nothing in the evidence to show how this accident occurred. There was only one witness examined on the trial by either party and that was the boy Gavigan. Upon his testimony we are unable to discover evidence of negligence on the part of the defendant. It is claimed that the shafting should have been guarded in accordance with the requirement of section 81 of the Labor Law, and that its not being guarded is evidence of negligence. That section provides that: "Whenever practicable, all machinery shall be provided with loose pulleys. All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery, of every description, shall be properly guarded." This shafting was located about eight feet above the floor, and it has been held that as to shafting or machinery thus located the provision of the Labor Law does not apply. ( Dillon v. National Coal Tar Co., 181 N.Y. 215; Glens Falls Portland Cement Co. v. Travelers' Ins. Co., 162 id. 399.) Negligence is not to be imputed, as matter of law, therefore, because the shafting was not guarded, but it might be a question of fact whether such machinery should have been guarded or protected. ( Glens Falls Portland Cement Co. v. Travelers' Ins. Co., supra.) There was no evidence, however, in this case which would have authorized the submission of such a question of fact to the jury, for all we have upon the subject is the statement of the witness Gavigan, that there was no danger whatever to the decedent in the situation in which he was placed at the time the accident occurred. That witness, in a statement he made which appears in the record in connection with his examination, said: "I often did the same work he was doing; there is absolutely no danger attached to it. * * * I made this statement that there was no danger about this work, to the effect that there was no danger, and that the accident could not have happened unless he put his hands where they ought not to be, based upon my own experience in doing this kind of work. That is as far as my experience is concerned, I thought there was not at the time." Nor was there evidence, even if it were required, to sustain the claim that under the section of the Labor Law cited, the defendant was guilty of negligence because he employed a lad less than sixteen years of age in operating machinery. This lad was not employed to operate machinery. He was merely called upon to hold the belt while repairs were being made to it and the only evidence we have upon the subject is that he was in a safe place while doing so.
But further than this, the case is destitute of proof which would allow the inference that the intestate was free from contributory negligence. No one can know how this accident occurred, or how the lad became entangled in the machinery. It is just as much inferable that it was through his own carelessness, as from any other cause. He had on former occasions assisted in doing the same work in the same manner. He, therefore, knew all the existing conditions. The witness Gavigan says in the statement to which reference has been made, that the only way in which he could account for the accident is, that the plaintiff's intestate "let go of the belt seeing it was slipping he tried to recover it and he went around on the shaft." But no weight should be given to that mere conjecture of the witness. Nevertheless, it remains that neither the work itself, if carefully done, nor the place in which it was done was dangerous. Under such circumstances the rule must be applied that in an action to recover damages for the death of a plaintiff's intestate alleged to have been caused by defendant's negligence, when there is neither direct nor circumstantial evidence which points either to the presence or absence of contributory negligence, the plaintiff cannot recover without some affirmative evidence to show that the decedent was not guilty of contributory negligence. Such was the rule announced in Wieland v. Delaware Hudson Canal Co. ( 167 N.Y. 19) and Wiwirowski v. L.S. M.S.R. Co. (124 id. 420). The language of the court in the case first cited is appropriate to that at bar: "Our conclusion herein may be briefly summarized in the statement that to permit the submission of such a case as this to a jury upon the question of decedent's contributory negligence would result, not merely in the extension of a rule which has already been stretched to the utmost degree, but in the abrogation of the rule itself."
This case should not have been submitted to the jury, and the motion for a nonsuit should have been granted. The judgment and order should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.
O'BRIEN, INGRAHAM, McLAUGHLIN and LAUGHLIN, JJ., concurred.
Judgment and order reversed, new trial ordered costs to appellant to abide event.