McMichael v. Federal Printing Co.

139 A.D. 225, 123 N.Y.S. 998, 1910 N.Y. App. Div. LEXIS 2167

Opinions

Woodward, J.:

I find no objection to the statement of the facts in the opinion of Mr. Justice Jenks, in so far as they relate to the construction of the machine, but I do hot think it was error for the court to exclude evidence of the use of cast iron bearings in specific shops or factories. It is probably true that 'if ‘ the defendant had offered to proye by witnesses that a given appliance was in common use, and had undertaken to prove this by showing that a majority of shops and factoi’ies were using it, it would be competent to show individual instances of. its use in all- cases where this might be done. The difficulty here is that no such offer was made; there was no suggestion that'the defendant intended to prove, common use by showing a large number of individual cases.; there was merely an offer to show conditions in two places, neither of which appears to 'have had the same construction as that involved in the case at bar. The question was not whether iron or bronze bearings were in general use, but whether there was such a general use of iron bearings under the circumstances and conditions in use in the defendant’s printing office as to justify their use by the defendant. No one questioned that iron bearings might be safe and proper under some conditions; it seemed to be admitted that they might properly be used on a loose pulley, where there was no driving power, but the question before the jury was whether the changed construction, that of bolting together an iron-bearing pulley and a bronze-bearing pulley, and then applying the power to the iron-bearing pulley was safe and proper, and this issue was not met by showing that some particular factory had thrown out bronze-bearing pulleys and substituted iron-bearing pulleys. Neither would it have been met by showing that the common practice was to throw out bronze-bearing pulleys. There was some evidence in the case that the cutting machine which worked the injury was of standard and approved make as originally installed, but that it had been changed by a bolting together of a loose iron-bearing pulley and a bronze-bearing pulley, and that the application of power to the iron-bearing pulley at the end of the shaft had a tendency to bring the shaft out of alignment and to increase the friction, and that the friction thus produced caused the shaft to heat and to finally cause the pulley to become attached firmly to the shaft in such a manner as to operate the cutting machine without the intervention of the operator, and that it was this construction, with this attendant result, which operated to start the cutting machine while the plaintiff was placing the paper under the knife. Obviously it was not the same construction which was in general use, or the construction which was originally intended for the machine. This being true, what was done in one or many other places using this kind of a machine or other machines of a similar character had nothing to do with the case, and the ruling of the learned court at Trial Term was entirely correct. It might be, if some one else had operated a machine of this same kind with-this same modified construction for a period of years without having discovered any defect in the plan, the evidence might be competent as tending to show that there was no reason for anticipating an accident of the kind which actually happened, but the testimony was not offered for this purpose, no foundation having been laid therefor, and the only purpose which its admission might have served would have been the confusion of the issue.

I am equally convinced that the reasoning of Mr. Justice Thomas, while most persuasive, goes only to the weight of the evidence on contributory negligence, and that the jury, having passed upon this question, it is not for this court to overturn the verdict simply because we think we might, sitting as jurors, have reached; a different conclusion. The theory of Mr. Justice Thomas seems to be that, it being the duty of the plaintiff to oil and clean his own machine, he must have neglected to perform this duty, as on previous occasions, when the pulley had clutched the shaft and operated the machine, it had been found that the application of oil corrected the difficulty. But the plaintiff testified that he cleaned the machine in the morning of the day of the accident, and that he oiled the same at or about thé hour of six in the evening, only about two hours before the accident happened, and the testimony showed that lubrication was required only about twice in each day. There was some evidence, therefore, of care on the -part of the plaintiff in respect to the very condition which is conceded to have been the proximate cause of the injury — the friction of the pulley upon the shaft causing a clogging and resulting in the fastening of the pulley to the shaft in such a manner that it' caused the machine to start at a time when it was not intended that it should start. The suggestion that if it was not negligent to use an iron pulley alone, it could not' be negligent to use it in connection with a bronze pulley, such bronze pulley being assumed to be proper if used alone, does not seeni to me to be conclusive. There was evidence that the oil cup provided on the bronze pulley' was much larger than that on an iron pulley, and while Hr. Justice Thomas points out that the bronze pulley also afforded the oiling cup for the flywheel, this does not fully meet tile situation. The oil cup provided on the iron pulley was the oil cup originally designed to supply the lubrication for a loose pulley, on which there was but comparatively small friction, and where there was no danger to the operator of the machine, even though it should become heated. This oil cup, entirely adequate for the loose pulley, we may assume, may have been entirely inadequate for a pulley subjected to the strain of driving a sixty-inch knife blade through heavy stacks of paper, and it was not the duty of an ordinary machine operator to know of this defect in the machine as it was afforded him for operation. It should be remembered that the driving power was taken from the pulley which was supplied with the large oil cup, and transferred to the pulley with the small oil cup, and the plaintiff may be absolutely truthful in saying that he oiled the bearing at six o’clock in the evening and yet the lubrication may have been insufficient, owing to a defect in the construction of the machine as modified, by reason of the iron pulley being put to a task for which it was not designed and which made the smaller oil cup inadequate. It is not the province of an ordinary, machine operator to understand accurately the law of friction and.to determine with accuracy the exact amount of - lubrication required; he has performed his duty when he has oiled the machinery in harmony with the usual custom in reference to such machinery—in accord with the rules suggested by the manufacturers, and it appears in this case that twice each day was the rule for this machine, as it was Originally designed, with the iron-bearing pulley used only as an “idler’ when the machine was not performing its work. The - plaintiff testifies that he oiled this bearing; that he filled the oil cup to overflowing, to be sure that it was properly done, and if this is true, and the accident resulted because the master had permitted the change in construction by which the loose pulley with small friction and a small oil cup was made to take the strain of the actual working of the machine, thus increasing the friction without any corresponding increase of the lubricating contrivance, then there was neglect of the duty which the master owed to the servant, and the verdict of the jury ought not to be disturbed. I am of the opinion that the evidence justified the jury in finding that this was exactly what occurred; that the plaintiff did clean the machine in the morning of the' accident, and that he oiled it within two hours of the time of the accident, thus complying fully with the requirements of the machine in its original condition, that it should, be oiled twice each day; that the pulley, originally designed merely to carry the belt when the machine was not in operation, and requiring but a small amount of lubrication, being put to the task of driving the machine in heavy work (for this was an extra large cutting machine), the provision for lubrication was inadequate, and the resulting friction produced the condition which caused the accident.

If I am right in this, it follows that the learned court below did not err, as suggested by Mr. Justice Jenks, in excluding the testimony in reference to the use of iron and bronze pulleys in specific cases, for that was not the issue; the question was whether the machine as reconstructed was a safe and proper machine. An iron pulley designed to be the driving pulley, and properly equipped for that purpose with an adequate oil cup, might be perfectly proper, while an iron pulley, intended only to carry a belt, without strain, and equipped with an oil -cup entirely proper for that purpose, might be extremely dangerous if used as a driving pulley, as was done in this case, and so the question of the use of iron or bronze pulleys, however general, could not justify the defendant in making use of a mere belt-carrying pulley, at least without warning the plaintiff of the fact .that the machine as thus changed would require oiling at much shorter intervals at this pulley'bearing,

The judgment and order appealed from should be affirmed.

Hirschberg, P. J., and Rich, J., concurred; Jenks, J., read for reversal, with whom Thomas, J., concurred in result in separate membrandum, in which Jenks, J., concurred.