William Keating, by Nicholas Keating, his Guardian ad Litem, Appellant, v. S. M. Coon, as Receiver of the Swits-Conde Company, Respondent

William Keating, by Nicholas Keating, his Guardian ad Litem, Appellant, v. S. M. Coon, as Receiver of the Swits-Conde Company, Respondent. Negligence—failure of an employee, injured while using a machine, to notify the superintendent of defects therein — a hoy's age and appearance should he considered on the question of contributory negligence. In an action brought under the Employers’ Liahility Act, to recover damages for injuries sustained by the plaintiff, a lad sixteen years of age, while employed by the defendant in the operation of a machine known as a carder, it appeared that when, about two months prior to the injury, the plaintiff applied to the defendant for employment, the defendant’s superintendent instructed a boy named Coonan, who was fourteen years of age, to instruct him how to operate the carder. The carder consisted first of a creel to which sixty spools of fluffy coarse thread were attached. Next to the creel and about eighteen inches off was the guide plate, an iron plate five feet by twelve inches and which contained the holes, sixty in number, for the thread to pass through from the spools. Still further along and about two inches from the guide plate were two wooden feed rollers two inches in diameter and of the same length as the plate. One roller was above the other with a small space between and they were covered with cloth filled with small wire teeth. The thread was caught by these rollers and pulled through to a tumbler or cylinder just beyond the rollers and which was a large roller covered with leather and containing many sharp wire teeth or prongs. This tumbler made about 400 revolutions a minute. Coonan, for nearly half a day, instructed the plaintiff in the operation of the machine. The plaintiff’s chief duty was to poke the threads as they came from the spools through the opposite holes in the guide plate in order that they might be taken up by the rollers. The plaintiff testified that the threads would clog the rollers and that when that occurred he was instructed to reach his hand over the guide plate and push the threads through the rollers towards the tumbler. While engaged in this work on the day of the accident his hand was caught by the wire prongs of the tumbler, drawing it through between the small rollers, tearing off and lacerating the flesh of his arm and rendering amputation necessary. He testified also that one end of one of these rollers was apt to work up at times and that it was in that condition when the accident occurred, thus giving room for his hand and arm to go in between them. The negligence charged by the plaintiff was the alleged failure of the defendant to instruct him adequately in the use of the machine and also its failure to supply a reasonably safe machine or appliance. The plaintiff testified that Haythorn, the superintendent in charge, attempted to adjust this machine when one of the rollers was heaved up as it was at the time of the accident; that at another time Haythorn showed him how to push .the thread through the guide plate; that, as it did not go through, the plaintiff put his hand back of the plate and tucked the threads in through between the rollers, and that Haythorn watched the performance, saying nothing. The court charged the jury that “If the plaintiff understood that the machine was out of order and dangerous for two weeks prior to the accident, there can be no recovery, because it would be clearly unreasonable to omit informing the superintendent during that period of time.” Reld, that such charge required the reversal of a judgment entered upon a verdict in favor of the defendant; That, in view of the evidence tending to show that the defendant’s superintendent knew that the rollers were out of gear and that the plaintiff was aware that he possessed such • knowledge, it could not be said as a matter of law that the plaintiff’s failure, for a period of two weeks, to notify the defendant’s superintendent of such alleged defect in the machine constituted negligence, which, under section 3 of the Employers’ Liability Act, would bar a recovery, by the plaintiff; That it was also error for the court to refuse to charge “that the jury must take into consideration the boy’s age and his appearance on the stand here upon the question of contributory negligence and upon the question of how much instruction and care he was entitled to upon the part of the superintendent.’' McLennan, P. J., and Stover, J., dissented. Appeal by the plaintiff, William Keating, by Nicholas Keating, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 23d day of January, 1904, upon the verdict of a jury, and also from an order entered in said cleric’s office denying the plaintiff’s motion for a new trial made upon the minutes. F. T. Cahill, for the appellant. Elisha B. Powell, for the respondent. [MAJORITY — Spring, J.:] Spring, J.: The plaintiff, a lad sixteen years of age, was injured October 16, 1902, in a machine known as a carder, while in the employ of the defendant and has brought this action pursuant to the Employers’ Liability Act (’Laws of 1902, chap. 600) to recover the damages which he sustained and which resulted in the amputation of his right arm above the elbow. About two months before the injury he applied to the defendant for work and was turned over by the superintendent to a boy of fourteen years named Coonan to be instructed how to operate the machine. Each machine, for there were several in the room, consisted first of a creel on which sixty spools of fluffy coarse thread were attached. Next to the creel and about eighteen inches off was the guide plate, an iron plate five feet by twelve inches and which contained the holes, sixty in number, for the thread to pass through from the spools. Still further along and about two inches from the guide plate were two wooden feed rollers two inches in diameter and of the same length as the plate. One roller was above the other with a small space between and they were covered with cloth filled with small wire teeth like a horse carding brush. The thread was caught by these rollers and pulled through to a tumbler or cylinder just beyond the rollers and which was a large roller covered with leather and containing many sharp wire teeth or prongs. This tumbler made about 400 revolutions a minute. The further mechanism of the carder it is not important to consider. The Coonan boy stayed with the plaintiff nearly half a day instructing him in the operation of this machine. His chief duty was to poke the threads as they came from the spools through the opposite holes in the guide plate in order that they might be taken up by the rollers. The plaintiff testified that the threads would clog the rollers and when that occurred he was instructed to reach his hand over the guide plate and push the threads through the rollers towards the tumbler. While lié was engaged in this work his hand was caught by the wire prongs of the tumbler, drawing it through between the small rollers, tearing off and lacerating the flesh of his arm and rendering amputation necessary. He testified also that one end of one of these .rollers was apt to work up at times and it was in that condition when the accident occurred, thus giving room for his hand and arm to go in between them. The negligence which the plaintiff seeks to impute to the defendant is the failure to instruct him adequately in the use of this machine and also the failure to supply a reasonably safe machine or appliance for him to carry on the work intrusted to him. The main propositions of the case involved questions of fact, and as there certainly was no preponderance of evidence in favor of the plaintiff we should allow the verdict to stand except for errors which we think were prejudicial to him. The court after reading to the jury a provision of the Employers’ Liability Act designed to prevent an employee from recovering of his employer for personal in juries, by reason of a defect' known to the employee and which he failed within a reasonable time to give information of to his employer or superintendent, charged the jury as follows : “ It appears here that Mr. Haythorn was the superintendent of the carding room ; that his place of business was in that carding room, and it doesn’t appear upon this trial by any evidence that he was informed or had any knowledge or information that the machinery was out of order. Therefore, if the machine was out of order for the period of two weeks and the boy knew it, if the boy knew it and understood it, it was his duty to inform the superintendent to the end that he might put the machine in proper order and repair. It was his duty to give him the information within a reasonable time, and I charge you, as a matter of law, that if the boy knew of the defect, understood the danger, knew this machine was out of repair and ought to be fixed, the fact that he allowed two weeks to expire without giving such information to the superintendent, that the waiting so long a period was an unreasonable period of time for him to wait; that within that time, before the injury occurred, he should have given the superintendent notice that the machine was out of order. Waiting two weeks is too long; it is an unreasonable timé to wait under the circumstances where the superintendent is right in the same room.” Later in his charge he summarized the proposition in this manner : “ If the plaintiff understood that the machine was out of order and dangerous for two weeks prior to the accident, there can be no recovery, because it would be clearly unreasonable to omit informing the superintendent during that period of time.” The plaintiff testified that Haythorn, the superintendent in charge, attempted to adjust this machine when one of the rollers was heaved up as at the time of the accident; that at another time Haythorn showed him how to push the thread through the guide plate; that it did not go through, and the plaintiff put his hand back of the plate and tucked the threads in through between the rollers, and that Haythorn watched the performance, saying nothing. If Haythorn knew the rollers were out of gear and the plaintiff was aware that he possessed that knowledge, then it was not incumbent upon this lad to inform the superintendent of the defect. (Employers’ Liability Act, § 3.) At least we cannot say, as matter of law, that his -omission for two weeks to do this in the circumstances of this case, and in the light of his own evidence, absolutely bars a recovery by him. In the abstract the proposition of law stated by the court may be unexceptionable. But it was for the instruction and enlightenment of the jury in this particular case, and was to be construed by them with the facts before them, and it failed to include essential items of testimony which had an important bearing on its interpretation, and the jury ought to have been so instructed. Later the counsel for the plaintiff excepted “ to that part of the charge in which you charged as a matter of law that waiting two weeks was unreasonable, and I ask you to charge that the jury must take into consideration the boy’s age and his appearance on the stand here upon the question of contributory negligence and upon the question of how much instruction and care he was entitled to upon the part of the superintendent.” The boy’s age and appearance may have been important factors in measuring his own conduct and the necessity for more definite instructions as to the operation and danger of the machine, and consequently we think the plaintiff was entitled to have the jury instructed as requested. The court, however, responded: “ I cannot change my ruling and holding to the effect that he is called upon to exercise reasonable care, such reasonable care as a person endowed with those qualities to a reasonable degree would have exercised under those circumstances, I can’t change that.” To which an exception was taken. The-charge' as given does not meet the question. The plaintiff was sixteen years of age when the accident occurred, and he was before the jury. They were entitled to know how the question of contributory negligence and the necessity of more careful instruction were affected by reason of his age and appearance. These concrete, tangible elements the counsel was properly trying to have the jurors apprehend. A proposition couched in general language may do for a text book, but jurors simply have in mind the evidence of the particular case and they need enlightenment as to the law pertaining to that case, and a mere abstract generalization is more apt to mystify than to impart information. For these reasons the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. All concurred, except McLennan, P. J., and Stover, J., who dissented. Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.