Edward Mattos, Appellant, v. Edmund Felgenhauer and Others, Respondents

Edward Mattos, Appellant, v. Edmund Felgenhauer and Others, Respondents. Second Department, December 31,1913. Master and servant—negligence—injury to employee while attempting to place belt on pulley — defect not contributing to accident. Where in an action for personal injuries it was alleged that the defendant was negligent in allowing unguarded bolts to project from the side of a coupling which was in close proximity to a pulley, and the plaintiff testified that as he was trying to place the belt on the pulley it slipped off and caught his sleeve,.the fact that it drew in the plaintiff’s arm and the loose belting then wrapped itself into the space between the coupling and the pulley was not a cause of the accident, and the court was not required to submit to the jury the question of the nearness of the coupling to the pulley. Thomas and Rich, JJ., dissented, with opinion. Appeal by the plaintiff, Edward Mattos, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 5th day of May, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of April, 1913, denying plaintiff’s motion for a new trial made upon the minutes. William E. Butler, for the appellant. John C. Robinson, for the respondents. [MAJORITY — Putnam, J.:] Putnam, J.: On the former appeal (154 App. Div. 699) it was held that the unguarded bolts projecting from the side of the coupling did not contribute to the accident, as the plaintiff’s arm was caught in the belt and not in the coupling. The complaint charged that the defendant was negligent in “ allowing said coupling and the bolts therein to be and remain in close and dangerous proximity to said belt, and in allowing said belt, pulley and wheel, or wheel and shaft,- and shaft coupling and bolts to be and remain dangerous, unsafe and defective in construction and condition.” At this trial plaintiff testified that as he was trying to put the belt back, and before the belt had caught onto the revolving pulley, it slipped off, and “in that moment as the belt slipped ” it threw it out, and from slipping caught the plain- • tiff’s sleeve. On cross-examination, the plaintiff again stated that “in the same moment ” that the belt fell off, “it got hit by the sleeve.” The fact that it drew in the plaintiff’s arm and the loose belting then wrapped itself into the space between the coupling and the pulley was a sequel to the accident, rather than its cause. After his sleeve had been caught, the subsequent winding and jamming the belt into the space by the coupling would tend to stop the belt, and not to enhance the injury. Hence on this trial the court was not required to submit to the jury as a distinct ground of fault the question of the nearness of the coupling to the pulley. The judgment and order should, therefore, be affirmed, with costs. Jerks, P. J., and Oarr, J., concurred; Thomas, J., read for reversal, with whom Rich, J., concurred. [DISSENT — Thomas, J. (dissenting):] Thomas, J. (dissenting): Upon a former appeal in this action a judgment for the plaintiff was reversed upon the ground that the finding by the jury that the plaintiff was free from contributory negligence was against the weight of evidence. That ruling concedes that there was evidence that the plaintiff was free from contributory negligence. It was, in the opinion, carefully pointed out that of the four grounds of negligence charged against the defendant, two were not causative, but that as to the others “there was enough to require the submission of these questions to the jury.” Such two questions were stated to be “ the close proximity of the coupling to the pulley,” and whether there was negligence “ in not providing some appliance by which the belt might be put on other than by hand.” Upon a new trial, the court explicitly refused to submit the question of the negligent proximity of the coupling to the pulley, but submitted the issue of the safety appliance. The jury found a verdict for the defendants. The refusal to submit the one question as requested did not follow the decision of this court and was, in itself, error. The plaintiff was injured in attempting to place, a belt on a pulley, and as he did so the belt slipped down on the lower part of the wheel and caught between the pulley and the coupling. The distance between the pulley and the coupling was two and one-half inches, which was the exact width of the belt. After the belt caught in the confined space, it wrapped around the shaft several times, in the course of which it entangled the plaintiff’s sleeve and caused injury. It was quite practicable to move the coupling farther from the pulley, and the failure to do so, as the evidence strongly tends to show, was the cause of the accident. One of the witnesses says: “ The end of the belt was in between the pulley and the coupling, wrapped around; it was tight wrapped around and wedged in between; wedged in between the coupling and the pulley. His sleeve was there, in between the belt. When that belt was unwound the machinery was stopped and the belt began to be unwound, so the extreme end was flapping around two feet, and then three twists was unwound on the length and down, and then we came in between the pulley and the coupling and those ends we unwound about six wraps around or seven.” It seems also that some part of the belt overrode the coupling, for the witness says: “The part of the belt that was wound up over the coupling came away, but the part between the coupling and the pulley we had to use force in order to pull it away.” In other, words, the belt, jamming in the place, wound and wedged itself around the shaft, entrapping plaintiff’s sleeve. So, then, by inadvertence, not only was the rule established by this court disregarded, but what seems to be a plain cause of the accident the jury was not suffered to consider. The former decision condemns the present judgment, and it should be reversed and a new trial granted. Rich, J., concurred. Judgment and order affirmed, with costs.