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Taylor v. Kelvin

Decided: September 16, 1938.

BERTHA L. TAYLOR, INDIVIDUALLY AND AS NEXT FRIEND OF ROBERT S. TAYLOR, PLAINTIFFS-APPELLANTS,
v.
JAMES C. KELVIN, DEFENDANT-RESPONDENT



On appeal from a judgment of the Essex County Circuit Court.

For the plaintiffs-appellants, Jacob S. Glickenhaus.

For the defendant-respondent, Osborne, Cornish & Scheck and Abner Brodie.

Donges

The opinion of the court was delivered by

DONGES, J. This appeal brings up a judgment of nonsuit entered in the Essex County Circuit Court at the conclusion of the plaintiffs' case. The suit is by Bertha L. Taylor, individually and as next friend of her son, Robert S. Taylor, to recover for injuries sustained by the infant plaintiff, and consequential damages resulting therefrom, in consequence of having his finger caught and crushed in the gears of a printing press.

The accident occurred on January 29th, 1934, when the infant plaintiff was eleven years and two months of age. He was a pupil at the Summer Avenue School, a public school conducted under the supervision and control of the board of education of the city of Newark. The defendant was an instructor of mechanical arts in said school and plaintiff was in his class at the time of the occurrence in question.

The boy plaintiff was the only witness who testified concerning the manner of the happening of the accident, and from his testimony it appears that he had finished the project on which he had been working and on Friday, January 26th, he and two other boys were assigned to the task of cleaning the printing press. On Monday, January 29th, 1934, they were again engaged in this work, the plaintiff using emery cloth to clean rust and dirt from certain metal gears. One of the other boys, William Gionella, was on the side of the press opposite to that on which plaintiff was working and he turned a fly wheel causing the gears on which plaintiff was working to turn at a time when plaintiff's finger was in the cogs. The third finger of his right hand was so injured that amputation of the third phalanx thereof became necessary.

On cross-examination, the infant plaintiff was asked whether he knew that if the fly wheel were moved the gears would mesh, and he said that he did. He further said that he had seen this done, and that he knew from what he had seen of the machine the previous Friday that if the fly wheel were turned the gears would engage and he knew that if the gears meshed and his finger were between the gears there was likelihood of injury.

In this situation the trial court granted the motion for nonsuit on the ground that the only proper inference to be drawn from the testimony on behalf of the plaintiff was that an intervening independent agency, namely the act of the Gionella boy, was the proximate cause of the accident.

It is argued in this court on behalf of the appellants that the testimony raised a question for the jury "to determine whether it was negligence on the part of the teacher to permit

a pupil eleven years and two months of age to work on a dangerous machine, without guards, and without instructions as to the danger to be incurred and without proper supervision, and this irrespective of how the press was ...


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