Durkos v. Mills

120 A.D. 561, 105 N.Y.S. 183, 1907 N.Y. App. Div. LEXIS 1252

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 1907
• Status: Published

Opinion

Gaynor, J.:

The verdict is without any support. The defendant introduced no evidence. The plaintiff worked in the defendant’s factory. His duty was' to replace the bands on the spinning machines as they wore out every three or four days. It -waS not belting, or anything like that, but simple woven bands in the machine. It was simple ' work. . His evidence is that as he was fixing the bands on a machine it was started-up by some one, and his arm was' caught in the gears and twisted, and hurt to some extent. The machine had to be stopped to be fixed by him, and was stopped for that purpose. He says that as the machine started he faced around and saw the girl :who attended or. ran it run away from the place on the side of the machine where it would be started. “ She had to come right close ' to me to start. the machine,” he says — from two to - three feet. He did, not;see-, lifer come and start it* but he saw-her running, away. She knew1 that;.it' was stopped for liimvto- fix the- bands; he tpld her. This is all the evidence about starting the machine. It could not start except some one started it'., ' ■

The- learned and able trial: judge sent the case to -the;, jury on -the one question whether the defendant had not neglected to make and promulgate, some rule in, respect- of the'stopping.of the machines for repairs, and, starting them-, which .would- prevent, such -an- accident: - H'e did-not say-yvhat the rule should be ; there-is no suggestion by liim or anywhere in the case' of' the nature or-contents of any rule that'might have prevented the accident. 'A case, cannot be sent to a jury'in that way. . .A general. essay: is; not what.the law requires to.be given to the jury as a charge,,but a concrete and exact statement of the point of-fact submitted to them. Ho one can tell wliat. rule the jury' secretly determined should have been promulgated, or whether they determined that any was necessary,, dr possible,-or practicable ; so that we have nothing,-before us on which -to review thfe case on the head on which it, was decided-. But beyond all this, there is no evidence whatever (as strange as it sounds) tiiat the defendant had not promulgated rules.on. the subject.' It may or may not be that compensation! should, he. made for all injuries in • .factories; and. that a. scheme for that purpose should be. enacted as law; 'but the courts do not enact laws; they only interpret and follow the law ás it is. ■

The-judgment-should be reversed: ■

■ Jenks, and Milleb, JJ., concurred; Hieschbebg, ?• J.,.and Woodward, J., dissented.

Judgment and--qrder reversed-and new trial granted-; costs--to abide the event.