Fitzgerald v. Elsas Paper Co.

Appellate Terms of the Supreme Court of New York

Fitzgerald v. Elsas Paper Co.

30 Misc. 438, 62 N.Y.S. 597

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 15, 1900

StatusPublished

This text of 30 Misc. 438 (Fitzgerald v. Elsas Paper Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fitzgerald v. Elsas Paper Co., 30 Misc. 438, 62 N.Y.S. 597 (N.Y. Ct. App. 1900).

Pincite

Opinion

MacLean, J.

The plaintiff, about sixteen years of age, brought this action by his guardian to recover damages for personal injuries received in the employment of the defendant. He testified that, while feeding a cylinder press, he slipped from a box or platform upon which he was standing, and that a cogwheel caught the knee of his trousers and tore his leg. Whether that wheel was or was not guarded, according to the requirements of the Factory Act, does not appear. Assuming, however, that it was not, it does appear that the plaintiff was of discretionary age and had worked at that press sufficiently long to be charged with obvious perils, and so could, and must, be held to have waived the protection of the act by accepting the employment and working and continuing to work upon such a machine. Kingsley v. Pratt, 148 H. T. 372. The judgment must, therefore, be reversed.

Fkeedman, P. J., and Leventeitt, J., concur.

Judgment reversed, and a new trial ordered, with costs to the appellant, to abide the event.

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MacLean, J.

The plaintiff, about sixteen years of age, brought this action by his guardian to recover damages for personal injuries received in the employment of the defendant. He testified that, while feeding a cylinder press, he slipped from a box or platform upon which he was standing, and that a cogwheel caught the knee of his trousers and tore his leg. Whether that wheel was or was not guarded, according to the requirements of the Factory Act, does not appear. Assuming, however, that it was not, it does appear that the plaintiff was of discretionary age and had worked at that press sufficiently long to be charged with obvious perils, and so could, and must, be held to have waived the protection of the act by accepting the employment and working and continuing to work upon such a machine. Kingsley v. Pratt, 148 H. T. 372. The judgment must, therefore, be reversed.

Fkeedman, P. J., and Leventeitt, J., concur.

Judgment reversed, and a new trial ordered, with costs to the appellant, to abide the event.

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Bluebook (online)

30 Misc. 438, 62 N.Y.S. 597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-v-elsas-paper-co-nyappterm-1900.