Opinion
July 11, 1911.
Evan Hollister, for the appellant.
Truman C. White and Hamilton Ward, for the respondent.
The plaintiff, a foreman in the defendant's employ, was caught by an unguarded set screw projecting from a revolving shaft and thrown from a platform to the ground, a distance of about twelve feet, and seriously injured.
The action has been tried twice. Upon the first trial a verdict was rendered in plaintiff's favor for $4,750, and the judgment entered thereon reversed here and a new trial ordered. ( Larsen v. Lackawanna Steel Company, 138 App. Div. 375.) Upon the second trial a verdict for $17,500 was rendered, which was reduced by the trial justice to $12,000, the plaintiff having consented thereto to avoid a new trial. The defendant again appeals to this court, contending among other things that the verdict is still excessive.
I think we should not again set aside the verdict, either as excessive or as against the weight of the evidence. While it is our duty to review the facts, and we do not hesitate to set aside verdicts which we regard as excessive or against the evidence, those questions must ultimately be settled by the jury in a case like this. And it not infrequently happens that cases come back on the second or third appeal with verdicts increased, which may possibly indicate that we have misjudged the question, at least as viewed by the tribunal which is the final arbiter thereon. Where a case has been fairly tried and the verdict is not the result of favor, passion or prejudice, and is fairly sustained by the evidence, the verdict should not be set aside here simply because our judgment may not accord with that of the jury and the trial judge who has permitted the verdict to stand.
The questions here are quite simple. The plaintiff was upon the platform trying to ascertain the cause of a belt running off the pulley on the revolving shaft. He was rightfully there. His mind was evidently concentrated upon his work, and not knowing, as he says, of the projecting set screw, he unconsciously leaned against the shaft or near enough to be caught by the set screw. If the defendant had guarded the set screw as the law requires the accident would not have happened. That it was practicable to guard the set screw and its location such as to make it reasonably necessary to do so is clearly established.
The only serious questions, as I view the case, are contributory negligence and assumed risk. As regards the latter, I think the unguarded set screw was such a defect as to come within the provisions of the Employers' Liability Act, and, therefore, the provisions of that act relating to assumed risk are applicable to this case, the proper notice having been served as required by the act.
That question, as well as contributory negligence, was a question of fact for the jury. In an action such as this, brought under the Employers' Liability Act, where a workman is absorbed in his work and unconsciously puts himself in danger and is injured through the failure of his employer to safeguard him as the law requires, I think it cannot be held as a matter of law that he assumes the risk or is guilty of contributory negligence.
The case of Dillon v. National Coal Tar Company ( 181 N.Y. 215), upon which the appellant relies, does not, as it seems to me, apply to this case. The Dillon case was not brought under the Employers' Liability Act. The questions of assumed risk and contributory negligence were determined under the rules of the common law; and, besides, I think there are other features of that case which distinguish it from this.
The learned trial judge charged that if the plaintiff knew of the set screw at any time prior to the accident, or could have seen it by ordinary observation, either when the shaft was stationary or when it was in motion, the verdict must be for the defendant. I think the charge more favorable than the defendant was entitled to, the action being under the Employers' Liability Act. But since the evidence was such that the jury could find a verdict in favor of the plaintiff, even under that rule, the verdict should not be disturbed.
I think the judgment and order should be affirmed, with costs.
All concurred; ROBSON, J., in result only.
Judgment and order affirmed, with costs.