Antonono Colelli, Respondent, v. Myron D. Turner and Others, Composing the Copartnership of Rutter & Turner, Appellants

Antonono Colelli, Respondent, v. Myron D. Turner and Others, Composing the Copartnership of Rutter & Turner, Appellants. Second Department, November 10, 1911. Master and servant—negligence—injury to servant by starting of machine — act of fellow-servant. Action by a servant against his master to recover for injuries sustained by the sudden starting of a machine for stamping leather at which, he was working. Evidence examined, and Tield, that a judgment for the plaintiff should be reversed, as the preponderance of evidence showed that the machine was started by a fellow-servant.. Hirschbbrgt, J., dissented. Appeal by the defendants, Myron D„ Turner and others, composing the copartnership, etc., 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 1st day of February, 1911, upon the verdict of a jury for $5,500, and also from an order entered in said clerk’s office on the 21st day of February, 1911, denying the defendants’ motion for a new trial made upon the minutes. John C. Robinson, for the appellants. William H. Griffin [Martin T. Manton with him on the brief], for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: Plaintiff, defendants’ servant, was injured by the starting of a machine for stamping leather, which he and Hall, a coservant, were attending, the latter introducing the leather and operating the machine on one side and the former lifting it from the plate on the opposite side. The primary question is what caused the plate on which the leather rested to move up against an upper plate and catch the plaintiff’s hand. Hall testified that he put his foot on the treadle and caused the plate to move upwards, and that he did so upon the plaintiff’s signal “All right.” Here is a definite, clearly revealed and normal cause for the movement, and the only actual cause presented by the evidence. The plaintiff produced evidence of a competent cause, and in the absence ©£ ¡a known cause it could be .accepted. It was vital to the plaintiffs recovery that he eliminate the aemuntabHIty of his. fellow-servant Hall. But the two were at the time cooperating in the work, as already stated. A piece of leather was on the plate. Each skin was stamped in sections, which required repeated movements of the plate, and Hall states the skin in the machine was on the third quarter. The plaintiff stated, “I am not sure, but I think there was another time to be stamped,” but upon being reminded that the unfinished state of the leather required Hall to be in his place, he immediately changed his evidence and stated that he believed that it was not finished, and he finally confesses to lack of exact memory. But Hall’s positive statement, that further stamping of the skin was required, if not aided by the plaintiff’s earlier and final statements, is not injured by Ms second. This indicates that Hall was in- such relation to the machine that he could start it. But plaintiff’s statement that Hall was not on his own side will bear scrutiny. He says, “By making this motion sideways, I could have seen him,” and then by questioning he does go farther and state that he saw Hall on his side, and nobody on the other side of the machine, and hence he argues that no one pressed the pedal and started the machine. The machine was one and one-half feet in width, as plaintiff’s evidence shows. The operatmg pedals extended from its side, and Hall could have stepped on them without being directly behind the machine. But Long, defendants’ foreman, states that at the time of the accident he was standmg right behind the plaintiff and that when the latter was caught Hall was right at his post. Did Hall, so far as appears a respectable man, fashion an untrue story to- save his master ? Did he make himself even the innocent cause of his fellow-servant losing his hand,, knowing that his assumption of the responsibility was sheer fabrication ? And did the foreman, looking at the two men state a known untruth to aid HalfMhis undertaking? The evidence shows clearly that a piece of leather was in the course of stamping; that Hall was thereby required to be witMn reach. of his- pedals, and the evidence of the two witnesses that he was-there so adds to the probability that he was that the testimony - of the plaintiff was clearly outweighed, and for this reason a new trial should be granted. 'The plaintiff was intent on his Nvonk until he was hurt, and upon his crying out Hall went at once to his assistance, and so plaintiff, may have from this inferred Hall’s location before the injury. The plaintiff’s case contains -evidence that a spring was defective, and that on former occasions during his own and the service of others the ■plate had moved upwards without the operation of the pedal. The defendants’ evidence shows that there was no defective spring and that the one accused had no office that could cause or permit this errant movement. But, as the case stands, that was a question for the jury, although, it seems strange that the function of the spring should be a matter of contention. The judgment and order should be reversed and a new trial granted, costs to abide the event. Jenks, P. J., Burr and Carr, JJ., concurred; Hirschberg, J., dissented. Judgment and order reversed and new trial granted, costs to abide the event.