On appeal from the Superior Court, Appellate Division.
For affirmance -- Justices Oliphant, Wachenfeld and Burling. For reversal as to defendant Board of Education and affirmance as to defendant Curry -- Chief Justice Vanderbilt. For reversal as to both defendants -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
[9 NJ Page 47] The plaintiff, Charles Meyer, in his own right and as guardian ad litem for his minor son, Edward,
brought this action for injuries sustained by the latter as a consequence of having his finger caught and mangled in the belt-drive mechanism of a power jig saw.
The saw in question was installed by the defendant board of education in manual training classes in a public school in Middletown Township for the use of students, of whom Edward was one. The defendant Curry was the instructor in charge of the class at the time of the accident.
The facts surrounding the occurrence of the mishap are not complicated nor in dispute. At the close of a class period, as was usual, the students, on Curry's instructions, were cleaning the various machines used in the shop. Edward was cleaning sawdust off the jig saw while a classmate was engaged in replacing the blade of the saw. Without warning, the classmate threw the electric switch starting the saw in operation, with the result that the little finger of Edward's left hand was drawn along the drive-belt and became enmeshed between it and the wheel around which it turned. The finger was badly cut, exposing the bone.
The instructor, Curry, was in the room, about 40 feet away, when the accident happened and his first knowledge of it came when Edward approached him exhibiting the damaged finger.
The complaint alleges negligence on the part of the board of education in maintaining the saw "unequipped with proper guards, safety appliances and protective devices," and on the part of Curry because the machines in the manual training department "at his direction and with his instruction * * * were operated in the negligent manner aforesaid," that is, without the proper guards, etc.
The answer denies negligence and, by way of separate defenses, sets up contributory negligence, assumption of risk, the performance by the board of a governmental function and the statutory provisions concerning its liability and that of its agents and servants.
The accident took place in April, 1949, when the plaintiff Edward was 16 years old. The previous September, at the
start of the school term, Curry had explained to the students each of the machines and the routine prevailing in the shop. Under the established rules, no boy was to turn on a machine unless he had a definite use for it; there were to be no two boys on any one machine at one time; no boy was to turn on a machine until he was satisfied the blade was clear and the moving part was free; he was not to turn on the machine until he had at least an arm's length clearance in each direction on either side and to the rear of him. Moreover, "safety pads," surrounded with a two-inch red mark, were placed in front of the machine. No one was to be within that line while the machine was in operation excepting the person operating it.
The saw which caused the injury had been in the shop at least since 1943, when Curry assumed the position of instructor and supervisor, and although used by three classes a day averaging 25 boys each, there had been no previous accidents.
At the conclusion of the defendants' case, they moved for a directed verdict, which was granted after an extensive colloquy. The Appellate Division affirmed and the case comes here on certification granted by us.
Both the trial court and the Appellate Division decided that the doctrine of "intervening cause" controlled and found for the defendants, basing their decision principally on Taylor v. Kelvin, 121 N.J.L. 142 (E. & A. 1938). The appellate ...