Simpson v. New York Rubber Co. , 80 Hun 415 ( 1894 )

CULLEN, J.

This is an appeal from a judgment for the plaintiff,, entered upon the verdict of a jury. The action is to recover damages for personal injuries. The plaintiff was in the employ of the defendant, and had worked in its factory for some two years before the occurrence of the accident. On the occasion of that accident, while moving a truck, he slipped and fell, and his hand and arm were caught in some cog gearing, and so injured as to necessitate partial amputation. The action is based upon the statute requiring cogs, gearing, etc., to be properly guarded (Laws 1892, c. 673). The questions of the negligence of the plaintiff, whether he was properly passing the machinery at the time of the injury, and whether the machinery was properly guarded, were submitted to the jury. The instructions on these questions were correct, and, as we interpret the rather colloquial discussion between the court and counsel at the end of the formal charge, the defendant has nó cause of complaint as to them. The serious question in the case is the waiver by the plaintiff of the requirements of the statute. The learned judge was asked to charge that, if the defendant failed to properly guard the shaft and cog wheel, and the plaintiff knew it, and still continued in defendant’s employ, he waived the provision of the statute in that regard, and assumed such obvious risks as were incident to the use of the machinery in that condition. This the court refused, and the defendant excepted. This request and refusal fairly raises the question. The ^general rule settled by authority is: “A servant accepts the service subject to the risks incident to it, and where, when he enters into the employment, the machinery and implements used in the master’s business are of a certain kind and condition, and the servant knows it, he voluntarily assumes the risk resulting from their use, and can make no claim upon the master to furnish other or different safeguards.” Sweeney v. Envelope Co., 101 N. Y. 520, 5 N. E. 358. But the question presented in this case is a different one.' The statute has enacted that certain safeguards shall be had for the security of employ és of the factory. The failure to provide these statutory safeguards is criminal. It is doubtless true that parties can waive statutory provisions for their benefit, and can even make law for themselves which the courts are bound to administer, provided there is no question of public policy involved. In re New York, L. & W. R. Co., 98 N. Y. 447; Sentenis v. Ladew, 140 N. Y. 463, 35 N. E. 650. But is there no question of public policy involved here? To our mind there is, and that public policy should induce us to hold, unless a contrary doctrine is ■settled by authority, that this statutory protection cannot be waived. Our notion of government has confined state interference with the freedom of individual action within narrow limits, but •such interference has never been wholly prohibited. Experience has shown that in some matters persons must be protected from their own imprudence. If there were to be considered only the interest of the individual in his personal security, the statute would be unnecessary. The end sought to be accomplished could equally well be secured by contract between the employer and the employé. "The matter has always been a subject of contract; that is, no law has ever forbidden employés making the guarding of machinery a condition of their service. Yet such, contracts are unknown. If, therefore, assent can dispense with the statutory protection, the ■ subject, for practical purposes, is left in the same condition as it was before the enactment of the statute. But the state has great interest in the protection of its members, and this even of the most utilitarian character. In the case of a maimed employé, he and. his family are likely to become a public charge. The same is true-of the family of an employé killed. The community would seem, to have as much interest in the protection of the life and limbs of" a member of it as in the question whether he should pay 8 per cent, or 6 per cent, interest. Yet by no means which human wit can devise can he make a valid contract to pay more than 6 per cent., in this state. The doctrine of waiver or contributory negligence under this statute is but the equivalent of the contention “in pari delictu” under the usury statute,—a claim always repudiated by the courts. We admit that the terms of the usury law differ from those of the statute under consideration. But the present form of the usury law is simply the result of a long strife between the-legislature and the courts, the latter trying to avoid the effect' of the legislation,—a strife in which the legislature eventually proved victorious. Nor is the legislation under discussion anomalous. At the present time there seems to be a tendency to reaction in the doctrine of noninterference. Within a few years the-state has prescribed the prices to be charged for elevating grain in the port of New York by private individuals who possess no franchises nor even special facilities for the business. Yet this-legislation is held valid both by the court of appeals and by the supreme court of the United States. People v. Budd, 117 N. Y. 1, 22 N. E. 670, 682; Id., 143 U. S. 517, 12 Sup. Ct. 468. The claim that the question is settled by authority adversely to these views-is based on the case of Freeman v. Mill Co., 70 Hun, 530, 24 N. Y. Supp. 403, affirmed without opinion, court of appeals April 24, 1894 (37 N. E. 567). The effect of such affirmance is stated by Judge Finch to make that court “responsible only for the point decided, not guarantors of the reasons given or opinions expressed.” Rogers v. Decker, 131 N. Y. 490, 30 N. E. 571. In the case cited from Hun the action was for negligence, and not based on the statute. The question here was, therefore, not necessarily involved.. So far as we have any intimations from the court of appeals on the-question, they are adverse to the contention that the statute can be-waived. In White v. Lithographic Co., 131 N. Y. 631, 30 N. E., 236, referring to this statute, Judge Earl says: “It is not always true that the absence of guards about the machinery in such a case, provided the boy knew it, can have no bearing on "the liability of the employer.” In Purdy v. Railroad Co., 125 N. Y. 209, 26 N. E. 255, an agreement in advance, releasing the defendant (master) from damage for every cause, was held void, as without consideration; the simple continuance of employment being held insufficient to support it. The distinguished judge who wrote the opinion intimated grave doubts whether such an agreement was not void as against public policy. That view is the one uniformly adopted at circuit in this district, so far as we know. The same public policy which would render such an agreement void would seem also to avoid an agreement to waive the protection of the statute here under consideration. The judgment appealed from, and order denying new trial, should be affirmed, with costs.

DVKMAN, J., concurs in the result.