Kings County NyArchives Court.....Jacobson, Isaac Emiel Vs. Jacob Jacobson 1889
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Source: Reports Of Cases - New York
Written: 1889

Second Department, May Term, 1889.

ISAAC EMIEL JACOBSON, an Infant, by JACOB JACOBSON, his Guardian, Appellant, v. 
JAMES CORNELIUS, Respondent.

Machinery — what omission therein does not constitute actionable negligence on 
the part of the master.

In an action, brought to recover damages alleged to have been sustained by the 
plaintiff while in the employment of the defendant, by reason of the neglect of 
the defendant to provide safe and proper machinery and appliances for the use of 
the plaintiff in the discharge of his duties, it appeared that the plaintiff, 
who was about eighteen years of age, had been employed in the defendant's 
machine-shop about six months before the occurrence of the accident, which arose 
from the plaintiff's arm being caught in the belt connected with the defendant's 
machinery.

The only proof given upon the trial tending to show that the machinery in such 
shop was defective and could have been put in and out of gear in a better 
manner, was evidence to the effect that there was no counter-shaft, and no fast 
and loose pulley, technically so-called, which, had they existed, would have 
made it safer to connect and disconnect the power.

Held, that this omission was not actionable negligence, and that the plaintiff 
was properly nonsuited.

Appeal from a judgment dismissing the complaint upon the merits, recovered at 
the Kings County Circuit, and entered in the office of the clerk of the county 
of Kings on the 18th day of October, 1888.

The action was brought to recover damages for personal injuries sustained by the 
plaintiff by reason of the alleged imperfect condition of the machinery 
furnished by the defendant to the plaintiff, because of which the plaintiff was 
caught in a belt connected therewith, and his arm was seriously injured. 

Henry W. Bates, for the appellant. 

B. F. Tracy, for the respondent.

Barnard, P. J.:

The evidence makes out no cause of action, and the plaintiff was properly 
nonsuited. The plaintiff was about eighteen years of age and had been employed 
about six months in the defendant's machine-shop. There was no proof tending to 
show that the machinery by which the plaintiff was injured was defective in such 
respects as would support an action for neglect against the master.

The general rule is that the employee assumes the risks of the employment. The 
master is not bound to furnish the very best and safest machines. The implement 
must be reasonably safe of its kind and adapted to the employment. The only 
defect alleged or proven by the evidence is that the machine by which plaintiff 
was injured could be put in and out of gear in a better manner. There was no 
counter-shaft and no fast and loose pulley, technically so-called, which would 
have made it safer to connect and disconnect the power from the machine. This 
omission was not actionable negligence. (Lafflin v. Buffalo, etc., R. R., 106 N. 
Y., 136.)

This appeal does not present the merits. There was no exception to the ruling of 
the judge in dismissing the action, and there was no motion for a new trial on 
the minutes or on a case made at a Special Term, according to section 999, Code 
of Civil Procedure. No question as to merits can, therefore, be raised upon this 
appeal. (Third Avenue R. R. v. Ebling, 100 N. Y., 98.)

Judgment affirmed, with costs.

Pratt, J., concurred. 

Judgment affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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