
    Cornelius G. Roche, Respondent, v. The India Rubber and Gutta Percha Insulating Company, Appellant.
    Second Department,
    November 16, 1906.
    Master and servant — assumption of risk- by servant attempting to fix machine while in motion.
    A servant, whose hand is injured while cutting away rubber which had caught between the rolls of a machine, cannot basé a recovery for negligence on the failure of the master to furnish a clutch by which the rolls could have been stopped in time to prevent the injury where the servant understood the machine and the method of operation, and knew that the only way to stop it when there was rubber between the rolls was to shut off the power, for,, with such knowledge, he assumed the risk of injury in attempting to fix the machine while in motion.
    Hooker,, J., dissented.
    Appeal by the defendant, The India Rubber and Gutta Percha Insulating Company, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the; clerk of the county of Westchester on the 23d day of September, 1905, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 26th day of September, 1905, denying the defendant’s motio'n for a new trial made upon the minutes:
    
      William L. Kiefer [Frank V. Johnson with him on the brief], for the appellant.
    
      James M. Hunt, for the respondent.
   Jenks, J.:

The action is by servant against master for neglect to furnish a safe place and safe machinery. The latter omission alone was the subject of a trial which resulted in a verdict for the plaintiff. The servant had been of long service in the master’s factory where, incidental to manufacturing, rubber was thinned out by passing it through certain rolls under great pressure. The rolls were worked by machinery. The servant had been told how to work the machine and what he must do if the rubber was caught in the rolls. There were several machines, of which each included rolls. The servant had general charge of one of them worked by Sorentino. Sorentino left his mill to go to the water closet, and meanwhile the rubber was caught in the rolls of that mill. The plaintiff attempted to cut it off with a knife, as he had been instructed, and when at such work his hand was caught in the revolving rolls and was injured. The theory of the master’s negligence rests upon his failure to provide a certain kind of clutch, which it is asserted would have stopped the rolls in time to save the hand from injury. The rolls worked by turning in opposite directions; they were about five-eighths of an inch apart and were plainly visible. They made about sixty revolutions a minute. The plaintiff had been employed about this machinery, and had seen the same or similar machinery at work for seven years. He testifies that he understood the position of the rolls and the manner of their operation. He must have realized that if his hand came in contact with the rolls thus adjusted, thus working and designed to exert such pressure as was necessary to thin out this rubber, there was danger of its being drawn in an'd injured. There was a clutch on the machine, but the plaintiff testifies that he knew that the machine could not be stopped by the clutch when there was rubber in the rolls, but only when there was no rubber in them. And he testifies that he knew that there was no way of stopping the machine when there was rubber in the rolls except in the manner that it was stopped on the day of the accident, namely, by shutting off the power. I think that upon his own testimony he must be held to have assumed the risk within the doctrine of Sweeney v. Berlin & Jones Envelope Co. (101 N. Y. 520), and Hickey v. Taaffe (105 id. 26). Section 3 of the Employer’s Liability Act (Laws of 1902, chap. 600) is not in' the way of a reversal of the judgment. (Wilson v. New York Mills, 107 App. Div. 99 ; Vaughn v. Glens Falls Cement Co., 105 id. 136.)

The judgment, should he reversed and a new trial ordered,-costs to abide the event.

Hirschberg, P. J., Gaynor and Miller, JJ., concurred; Hooker, J., dissented.

Judgment and order of the County Court of Westchester county reversed, and new trial ordered, costs to abide the .event.  