Campbell v. Jughardt

50 A.D. 460, 64 N.Y.S. 198

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1900
• Status: Published

Opinion

Per Curiam :

These actions grow out of personal injuries sustained by Florence A. Campbell, a young girl who was hurt while in the employ of the defendant, working upon an ironing machine.

The injuries appear to have been inflicted by the sudden jumping of the iron toward that part of the machine where the operator’s hand was placed while she was lifting up a sleeve to be ironed. She had never observed the iron to jump in that way before. The machine worked with a treadle which brought this iron down and held it down as long as the operator’s foot pressed on the treadle, but allowed the iron to go up when such pressure was removed. Florence A. Campbell, however, testified that her foot was not on the treadle when her hand was caught as described, and from this fact the inference is sought to be drawn that the ironing machine must have been defective or out of order.

This would not in itself be enough to charge the defendant with liability unless we could go further and find evidence showing that the employer knew, or ought to have known, of the defect. In that respect the case for the plaintiffs fails. There is proof that complaint had been made to the defendant that the machine did not work easily, and there is evidence that the defendant’s engineer knew that some of the bearings were worn. There was also testimony from Florence A. Campbell’s sister that the iron on the machine where Florence was hurt would not always come down straight on the roller, and that the witness “got lots of burns ” from it, and spoke to Mr. Jughardt on the subject. Hone of these alleged defects or difficulties in working the machine, however, are shown to have had any possible connection with the accident. The injury was due to the jumping action of the iron, as already described, which action had. never previously been noticed by Florence A. Campbell herself. Her sister, when recalled, testified that she had often seen it jump in the same way when she was working on the machine, but did not say that she had ever informed the defendant or anybody else of that circumstance.

Upon the case as presented the complaint in each action was properly dismissed. The exception in behalf of the plaintiffs must, therefore, be overruled and their motion for a new trial denied. It is to be observed that the record contains no order such as is required by section 1000 of the Code of Civil Procedure, but we have disregarded the omission. We cannot, however, overlook the objectionable practice of the plaintiffs in printing a large portion of the testimony in the record in italics so as to emphasize those "passages most favorable to their side of the case. (Fuchs v. William H. Sweeney Manufacturing Co., 12 N. Y. Supp. 870.) Hereafter this violation of rule 43 of the General Rules of Practice will compel the court to require the substitution of a properly-printed case before hearing the argument.

All concurred.

Exceptions overruled and motion for a new trial denied in each case, but without costs, inasmuch as the infant plaintiff was permitted to sue as a poor person and her mother’s action was brought at the same time as hers.