Fleming v. Buswell

39 A.D. 196, 57 N.Y.S. 230

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1899
• Status: Published

Opinions

Follett, J.:

This action was begun September 26, 1896, to recover damages for a personal injury, caused, it is alleged, by the negligence of the defendants, who are partners under the firm name of Buswell, Hubbard & Co., and engaged in tanning hides at Olean, N. Y. The plaintiff had been employed in tanneries at Latonis, Penn., and at Elmira, N. Y., for three and one-half years before he was first employed, in May, 1895, by the defendants, for whom he then worked about three months. About May 25, 1896, the plaintiff again entered defendants’ service as a grinder of bark and continued until June 3, 1896, when he was injured. The bark mill operated by the plaintiff was in a building about twenty feet square and eighteen feet high, and is known as the bark shed or bark house. The power which operates the bark mill is furnished by a steam engine located in the engine house from which a horizontal shaft extends through the upper part of the bark house and over the bark mill and is connected with it by a perpendicular shaft extending down to the bark mill. Connected with the bark mill is a bark carrier which removes from the mill the ground bark. The power which operates the bark carrier is communicated by another horizontal shaft extending from the engine house through the upper part of the bark shed, about fifteen feet above the floor, which shaft is connected with the bark carrier by a belt. On this horizontal shaft there is a tight pulley and by the side of the tight pulley is a loose pulley. When the bark mill and carrier were in operation the belt connecting the carrier with the shaft was on the tight pulley. In the afternoon of June 2, 1896, an accident occurred to the bark mill which made it improper to continue its use until repaired, and the plaintiff before leaving his work threw the bark mill out of gear so that the power communicated by the perpendicular shaft would not set the mill in motion. On the morning of June third, when the plaintiff entered the bark shed, the horizontal shaft, which by means of the belt communicated power to the bark carrier, was in motion, the belt being on the tight pulley. The result was that friction was caused and the belt in danger of being injured by the heat so developed. Underneath the two horizontal shafts and pulleys was a platform ten or twelve feet in length and about three feet in width, constructed of three hemlock planks, which was about twelve feet above the floor of the bark house. This platform was approached by an inclined plane made of planks extending from the floor of the bark house to the level of the platform. It was part of the daily duty of the plaintiff to pass up the inclined plane, enter upon the platform and oil the machinery above while standing on the platform, which duty he had performed during the nine days he had been employed by the defendants. For the purpose of preventing the friction between the belt and tight pulley, caused by the motion of the shaft, the plaintiff entered upon the platform and attempted to shift the belt from the tight to the loose pulley. To facilitate shifting the belt from one pulley to the other a belt shifter was, provided by the defendants, which it was the duty of the plaintiff to use. He testified: “ I had taken the belt off lots of times and it went off easily.” After making two ineffectual attempts to change the belt from the tight to the loose pulley by means of the belt shifter, he fell to the floor below, fracturing and dislocating his left elbow, spraining his left ankle and bruising his left side.

The crucial question is, precisely how was the accident caused ? The plaintiff asserted that one of the outside planks of the platform was not securely supported or fastened in place, and that when he stepped on the outer edge of this plank it tipped down under his weight and he was precipitated to the floor, twelve feet below. The plaintiff testified that when he felt the plank giving way under him he seized hold of the belt (a part of which had been changed from the tight to the loose pulley and was in motion) to support himself, and was carried by the belt a little distance before he fell to the floor below. The defendants contend that the accident was caused by the plaintiff neglecting to use the belt shifter and attempting to shift the belt with his hands, and while so attempting to make the •change was injured by the belt and pulleys and thrown to the floor by the moving belt, and that the accident was not caused by an insecure plank. In case the accident was solely caused by the defendants furnishing a dangerous platform on which the plaintiff was required to work, the defendants are liable for the consequences; but if, on the other hand, the plaintiff was injured by negligently ■discarding the use of the belt shifter, concededly a safe implement, .and attempting to shift the belt with his hands, the defendants are not liable, for the accident was the result, in part, of the plaintiff’s contributory negligence. The jury found after a sharply contested trial that the accident was caused by the tipping of the insecure plank. The court was requested by the defendants to charge “ that if the plaintiff attempted to shift the belt by taking hold of it with his hands and he "was caused to step back by reason of his being carelessly in close proximity to the belt when it started, he cannot recover even if they find that the outer edge of the platform tipped.”

This request embraces the proposition that in case the jury found that the accident was initiated by the attempt of the plaintiff to shift the belt with his hands instead of with the belt shifter and to •carry out this purpose he stepped upon a loose plank and fell, the •defendants are not liable. The learned trial court declined to charge •on this question differently from what it had charged, and an exception was taken. An examination of the charge fails to disclose any instruction upon this preposition. The court had instructed the jury that in case they sustained the plaintiff’s theory as to the cause of the accident, he was entitled to recover, but. in case they sustained the defendants’ theory as to the cause of the accident, the plaintiff could not recover. The court did not instruct the jury that in case they found that the plaintiff in a negligent attempt to .shift the belt with his hands instead of with the belt shifter, was, by the motion, suddenly imparted to the belt, caused to step away from it and upon a plank negligently left unsecured, the defendants would not be liable, because the accident occurred from two concurring causes, one of which was brought into existence by the plaintiff’s negligence and directly contributed to bring into operation or render effective the other cause. "While the two causes mentioned in the request to charge, if found by the jury to exist, were not concurrent in the sense of occupying exactly the samé space of time, coincident or contemporaneous, they were concurrent in the sense of acting conjointly and connectedly co-operating and contributing to produce the result, the accident. (Whart. Law Dict.; Murray’s Dict.; Century Dict.) Concurrent causes as secondly defined have the same legal effect in the law of negligence as those first defined. There was evidence which would have sustained a finding that the accident occurred in the manner indicated by the request. Defendants’ superintendent testified that he saw the plaintiff immediately after the accident and asked him how it occurred, “ and he (plaintiff) said he took hold of that belt to put it on to the loose pulley and the belt threw him.” The plaintiff testified: “ Of course I was not so very close, but as soon as the belt began to move it jerked a little and I stepped back close to the loose plank at the edge and the plank moved a little under my feet. * * * Of course I couldn’t get on to anything else and I grabbed the belt or I had to fall.”

I think the court erred in refusing this instruction, for the reason that if the jury had found that the accident was caused in the manner indicated by the request, the negligent act of the plaintiff directly contributed to cause the accident.

For this error the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concurred, except McLennan and Spbing, JJ., dissenting.