Ramsay v. Arbuckle

147 A.D. 685, 132 N.Y.S. 579, 1911 N.Y. App. Div. LEXIS 2950

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 1911
• Status: Published

Opinion

Thomas, J.:

Plaintiff, defendants’ servant,, has recovered judgment for personal injuries received while correcting the adjustment of a coffee packing' machine, which was suddenly started into motion by a girl whose duty it was to deliver circulars to this and other machines. The machine was one of twelve then in use. Each had an attendant, and over the attendant were operators, of whom plaintiff was one, whose duty it was, upon discovering or learning of imperfect operation of á machine, to make such repairs as did not demand the skill of a mechanic. The plaintiff had stopped the machine for ■ adjustment, and while he was busy with it, a girl, who had been for a few days serving as above stated, appeared from a side opposite the plaintiff and started the machine. It was a meddlesome act, done suddenly in the face of the usual attendant, done without instruction, against duty, unauthorized by practice and not expectable from her previous actions. The usual, attendants started and stopped machines, as did the operators,, but this interfering action of the girl who fed. circulars to the machines was beyond any related experience or intelligent expectation. And yet the jury has found that in the exercise of ordinary cafe the master should have anticipated that somebody would start the machine when an operator had intervened to suspend ■work on it. and make adjustment. What should the master do ?. The plaintiff suggests that the master should have 'by rule required a sign to be placed on the starting lever, or that an employee should not start a- machine without first walking around it to discover whether an operator was at work upon it. The operator would not start the machine -himself; and as the attendant knows that the operator has taken possession of the machine to adjust it, why notify her in writing ? For whom, then, is the proposed rule ? For possible erratic, undutiful and . forward girls, who have nó right to start the machine ? .Notify persons who have no right to start it to walk around it before doing so, or that some person is engaged' upon it for whom they should look out before trespassing ? It would be ' as reasonable to require an engineer to hang a sign on the locomotive stating that he was under it lest an intruder should start it. - There was no rational apprehension that the attendant would start it, and errand girls are not shown to have made mischief in like manner. There is nothing save the plaintiff’s serious misfortune that can account for a verdict that is supported by ho right reason.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Burr, Woodward and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.