Staskowski v. Standard Oil Co.

The appeal. is by the plaintiff from his dismissal at the close of the case. ' The action is by servant .against master for negligence, and the complaint is inter alia of a defective machine furnished by the master in violation of his obligation to exercise due care to furnish proper appliances. (Benzing v. Steinway & Sons, 101 N. Y. 547.) The servant, testifies that-on the Friday before the accident he noticed that the hamper fell two or three times while his foot was off the treadle ; that he informed the machinist-of the defendarit who thereafter told him that he had'“ fixed ” it, that it was in proper condition and to resume its use. The: servant continued to use the machine for two days and it worked properly. *18It worked likewise for several hours on the day of the accident, but at a time when the plaintiff with his foot off the treadle was engaged in taking out a certain material from the machine, the hammer cande down automatically upon the table and injured his hand. Normally this material was thrown out from the .machine automatically, but sometimes it. “ stuck,” whereupon the workmen were acensto'med to take a piece of stick or a wire and use it to take out the material. The servant was using a stick at the time of the accident. The sole question which I decide is .whether the plaintiff had made out a prima fatiie case so as to escape dismissal. So far as the question of his contributory negligence is concerned, which was certainly in this case, suffice it to say that at the close of his evidence it did not present a question of law for the court. Répair to this press was not a detail of the work hut was a duty of the master. (Fox v. Le Comte, 2 App. Div. 63; affd. on opinion below, 153 N. Y. 680.) I am of opinion that the learned court erred in that the plaintiff had made out a prima facie case which presented a question for the jury whether the master had discharged his obligation to the servant to exercise due care to furnish a fit and proper machine. I think that Sopherstein v. Bertels (178 Penn. St. 401) was well decided and is precisely in point.

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

Hooker, G-aynor, Rich and Miller, JJ., concurred.

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