Hurley v. Atlantic, Gulf Pacific Co.

Full title: CATHERINE HURLEY, as Administratrix, etc., of DANIEL P. HURLEY, Deceased…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: May 4, 1910

138 App. Div. 642 (N.Y. App. Div. 1910)

122 N.Y.S. 701

Opinion

May 4, 1910.

James Russell Soley and Carroll G. Walter, for the appellant.

Kiley Bush [ T.D. Trumbull, Jr., of counsel], for the respondent.

COCHRANE, J.:

The jury were told by the trial justice that they might find the defendant negligent either because it failed to provide a system of signals between the leverman and those in the cutter engine room whereby the latter could be informed that the former was about to start the cutter engine; or because the machinery in the cutter engine room was not guarded.

First. The men in the cutter engine room had absolute control of that engine. It was made their duty to close the stop valve and they were thereby rendered entirely independent of the action of the leverman. He was powerless if they made proper use of the facilities at their disposal. The plan adopted was, to say the least, certainly as safe as a method of communication between the leverman and the cutter engine room. By the latter method the deceased would have been dependent on the proper observance of duty by the leverman, whereas by the method in use the deceased held his safety in his own hands and could not be made the victim of any inattention to duty by the leverman. The defendant clearly performed its entire duty in this respect.

Second. It may be that this machinery could have been guarded. The ordinary purpose of guarding machinery, however, is to prevent workmen from accidentally or inadvertently coming in contact therewith. Here the deceased purposely placed himself in contact with the machinery. His duty required him to do so for the purpose of repairing it and to see whether the part repaired was operating properly. Possibly if the machinery had been guarded the deceased could not have placed himself in such a position with reference thereto that he would have been injured. But the position which he assumed was voluntary and designed and not accidental or inadvertent and was assumed with full knowledge of the consequences in case the machinery should start. If this accident was due to the absence of guards the record fails to disclose such fact.

The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.