Nellie O'Connor, an Infant, by Mary O'Connor, her Guardian ad Litem, Respondent, v. J. H. Barker & Co., Appellant

Nellie O’Connor, an Infant, by Mary O’Connor, her Guardian ad Litem, Respondent, v. J. H. Barker & Co., Appellant. Negligence—failure of a foreman to instruct an employee how to clean a chocolate grinding machine— the foreman is in this respect the alter ego of the master. In an action, brought by a girl fifteen years of age, to recover damages for personal injuries caused by the alleged negligence of the defendant, it appeared that the defendant had “ promulgated” in his chocolate factory a rule, communicated to the foreman of a floor on which the plaintiff was employed, but not to the plaintiff, that a certain grinding machine should always be stopped before removing chocolate from the inside ; that, on the first day of the plaintiff’s employment on the floor in question, the foreman^ having given her no prior instructions as to the cleaning of this machine, told her to put her hand inside of the machine and take out the chocolate, and that, in so doing, one of her fingers was cut off, presumably by scrapers revolving in the receptacle and designed to cut the chocolate from its sides. Held, that- the plaintiff had made out a case for the submission to the jury of the question as to the defendant’s negligence ;' That the foreman in the matter of the duty of instructing the plaintiff as to the danger which attended the operation of the machine represented, and was the alter ego of, the master. Appeal "by the defendant, J. H. Barker & Oo., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of May, 1897, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 3d day of May, 1897, denying the defendant’s motion for a new trial made upon the minutes. Herbert C. Smyth, for the appellant. James D. Bell, for the respondent. [MAJORITY — Goodrich, P. J.:] Goodrich, P. J.: . The plaintiff, a girl of fifteen of sixteen-years of age, was injured on January 12," 1895, while in the employ of the defendant, which had a factory in the city of New York for the grinding and manufacture of chocolate. She had been in the employ of the defendant five dayls, when she was- set at work upon a grinding machine, called a “ Melanger.” The machine was used for the purpose of grinding chocolate by means of a heavy stone roller which revolved inside of a circular pan-shaped receptacle. Attached to the roller was an . arm to which were adjusted scrapers which followed the wheel around, keeping the chocolate from the sides of the pan and in the track of the wheel. At one side of the pan was an opening with a door which was to be closed when the machine was in operation. At intervals this door was opened and 'the machine reversed, when the scrapers acted so as to throw the chocolate out through the opening. At and beneath the opening ivas a large open spout to receive the chocolate as it was thrown out and passed into a pan underneath the spout. The plaintiff testified that her first work in the factory was in . another apartment, preparing boxes for chocolate, where she worked until the day she was hurt. On that day she was sent by .the superintendent to the floor below, where the machine was in operation, and was told to do whatever Julius Pearlstone, the foreman of that floor, ordered her to do; Pearlstone directed her to clear the sieve, which she did. She was then told by him to empty the chocolate from the pan into the barrel, after which she asked him what she would do next and was. told by him : “ Put your hand inside the machine and take the' chocolate that is inside out.” She put her hand in while kneeling, and was doing this when she felt something sharp passing over her hand. One of her fingers was taken off and her hand otherwise injured. There is no evidence that she was instructed in any way by Pearlstone in the use of the machine. Reynolds, the superintendent of the factory, testified that the defendant, had “ promulgated ” a rule which he communicated toPearlstone, that the machine should always be stopped before-removing the chocolate from the inside, and there is evidence that this was customary, but there is no conclusive evidence that this order or custom was communicated to the plaintiff. Pearlstone denied telling the plaintiff to put her hand inside the machine and take the chocolate out, but there was other testimony both corroborating and contradicting the plaintiff’s testimony upon this subject. This raised a question of fact in respect to which the court said: “ I charge yon that if that was not told to her, there is nothing for you to consider in this case. If Julius did not-tell her that, then there is nothing for you to pass upon and the defendant is entitled to a verdict.” The verdict establishes the fact that the plaintiff was instructed by Pearlstone to put her hand inside the machine to remove the chocolate. It may be a possible explanation of this extraordinary order that he intended by the words “inside the machine,” to refer to the large spout into which the chocolate was ejected from the machine, or that the order related to times when the machine was stopped. But, assuming either of these hypotheses, there was no evidence that the plaintiff was instructed not to put her hand into the opening while the machine was in operation. This department, in several similar cases, has held that it is proper to submit to the jury the question whether the defendant was guilty of negligence in placing a new operator at work upon a machine without warning him of the danger which attended its operation. (Borgeson v. United States Projectile Co., 2 App. Div. 57; Latorre v. Central Stamping Co., 9 id. 145; Strauss v. Haberman Mfg. Co., 23 App. Div. 1.) The defendant’s counsel asked the court to charge: “ That if they find that Julius did, as a matter of fact, give this direction- to the plaintiff to put her hand in the door, that'that was the direction, of a fellow-servant.” The court declined to charge as requested, adding: “ It is for them to say whether it was or -not.” The request raised the question whether Pearlstone was the alter ego of the defendant or the. co-servant of the plaintiff. • There was evidence that the defendant had “ promulgated ” a rule that the man who had charge of a machine should always stop the same before cleaning it, and the promulgation appeared to be that this order was given to the superintendent of the factory and was by him communicated to Pearlstone, but there is no evidence that Pearlstone instructed the plaintiff. The jury, under the charge of the court on that subject, has found by its verdict that Pearlstone directed the plaintiff to put her hand inside the machine to clean out the chocolate,, and it is evident that the machine' was in motion when she put her hand inside, as otherwise she would not have received her injury. But it was the duty of Pearlstone to instruct the plaintiff as to the operation of the machine and that she should not put her hand in while it was in motion. In this duty he was the alter ego of the master. His failure to instruct was the cause of the accident. It was held in Corcoran v. Holbrook (59 N. Y. 520) that “ as to acts which a master or principal is bound * * * to perform toward liis employes, if he delegates the performance of them to an agent, t-lie agent occupies the place of the master and the latter is deemed present and liable for the manner in which they are performed.” The failure of Pearlstone tó instruct the-plaintiff was the cause of the accident, and in this duty he was the alter ego of the master and not a co-servant of the plaintiff. . ■ The modification by the court and the submission of the question to the jury was more favorable to the defendant than the law requires. I have examined the other exceptions and find in them no reversible error. The judgment must be affirmed, with costs. Judgment and order unanimously affirmed, with costs