
    Alfred Eldredge, App’lt, v. The Atlas Steamship Company, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 10, 1890.)
    
    Master and servant—Negligence.
    Plaintiff shipped as a seaman and was put to work on a dangerous machine, which he had not seen when he entered defendant’s employment, and was injured thereby. Held, that from the peculiar character and obligations of his contract and his duty to obey all lawful orders, he could not be said to have ass med this risk; that the question of liis contributory negligence was for the jury, and that a dismissal of the complaint was error.
    Exceptions ordered to be heard in the first instance at the general term.
    
      J. Fromme, for app’lt; L. Godlcin, for resp’t.
   Brady, J.

This action was brought to recover for personal injuries sustained by the plaintiff by reason of the alleged negligence of the defendant

Upon the trial the complaint was dismissed and the exceptions directed to be heard in the first instance at the general term.

It appeared that on the 9th of November, 1886, the plaintiff shipped on the Alvena as an able bodied seaman and went on board the ship on the morning of the 10th. The vessel was bound from New York to Kingston. There were on board three winches, machines for the purpose of removing the cargo. In winches Nos. 1 and 2 the cog-wheels were covered and therefore guarded. They were not in No. 3, and therefore were unguarded. In using the machine it was necessary for the man attending it to extend his hand over the cogs to reach a lever which was a necessary working part of the machine.

On the 23d of November the Alvena, then at Aspinwall, was hauled alongside of the Athos to ship its cargo to that vessel. The plaintiff was ordered by the chief officer to drive winch No. 3, although it was not covered, as we have seen, and therefore in a dangerous condition. When the plaintiff boarded the Alvena he knew nothing of the construction of the vessel or of her winches and never was on board of her before. Whilst working the winch he had to reach over the cogs to get the lever to reverse, and at the same time was compelled to shut off the steam and look for the signal from the commanding officer and come back, and while thus engaged his left hand was-caught in the cogs and three of his fingers cut off. All the winches on the vessel (except No. 3), were guarded by a cover, as already suggested, which was permanent, screwed down, the object of which was to protect the hand from being injured by the cogs.

The plaintiff having shipped on board the vessel was bound to obey orders, and could not refuse without danger of punishment to work the winch as commanded. His exposure was not therefore voluntary, except so far as that might be inferred from his shipping as a seaman on board the vessel.

And herein lies the plaintiff’s right of action if any exist under the authorities.

It seems to be well settled that the defendant is not bound to supply a machine which is absolutely safe or which contains the latest improvements, and that an employee in accepting service with a knowledge of the character of the machine, the dangers of wdiich are apparent, assumes the risk incident to the employment and cannot call upon the defendant to make alterations to secure greater safety, or recover for injuries arising from service under such conditions. Hickey v. Taaffe, 105 N. Y., 26 ; 6 N. Y., State Rep., 426; Gibson v. Erie, 63 N. Y., 449 ; Buckley v. G. P. & R. M. Co., 113 N. Y., 540; 23 N. Y. State Rep., 618.

But in those cases the employment was upon the machine directly which was seen at the time of the employment and therefore apparent, and its defects and dangers visible.

But here the defendant shipped without any knowledge whatever of the character of these winches, and his obligations were such that a refusal to work them when commanded would necessarily involve serious consequences to him. He was bound to obey orders which were lawful, that is, not mala per se or mala prohibitum, and for a refusal would have forfeited his wages or be Smished. Parsons on Maritime Law, vol. 1, p. 466 ;_§ 4596, U. S. . S., 2d ed., 1878, p. 890.

The general rule as stated in Sweeney v. Berlin, etc., Co., 101 N. Y., 524, is that the servant accepts the service subject to the risks incidental to it, and where the machinery and implements of the employer’s business are at that time of a certain kind and condition and the servant knows it, he can make no claim upon the master for other or different "safeguards.

Under such circumstances the servant is regarded as voluntarily taking the risks resulting from the use of the machinery unless the master by urging on the servant or coercing him into danger, or in some other way, directly contributes to the injury.

Under the facts disclosed the plaintiff had no alternative but to obey; and whether he was guilty of contributory negligence or not, particularly when it is considered that the other winches were covered and the workmen protected from injury, if indeed that question is at all presented in this case, was one at least for the jury to determine.

This view is predicate of the ignorance of the plaintiff of the character of the winches whether safe or dangerous when he accepted employment and his compulsory service at a dangerous machine resulting from the peculiar character of his contract and its duties and obligations; and of the defendant’s apparent negligence in leaving the winch uncovered, a precaution the utility and necessity of which seems to have been conceded by the use of the covering on similar machines on board the same vessel.

We think that there must be a new trial, with costs to plaintiff to abide the event.

Van Brunt, P. J., and .Daniels, J., concur in result.  