
    James Dyer, Respondent, v. John L. Radermacher, Appellant.
    Second Department,
    March 4, 1910.
    Master and. servant — negligence — injury by revolving rollers — . contributory negligence. '
    A servant who, having shut ofE the power from a machine with which he was familiar by shifting the belt from the driving pulley, went into another room into which the machine extended and put his hand between the rollers: to extract material therefrom without waiting for the rollers to come to rest, is guilty of contributory negligence which bars a recovery for the injuries received.
    Hirschberg, P. j., dissented.
    Appeal by the defendant, John L. Radermacher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of January, 1909, upon the verdict of a jury for $5,000, and also’ from an order entered in said clerk’s office on the 18th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      William A. Jones, Jr., for the appellant.
    
      John B. Stanchfield [Jacob G. Brand with him on the brief], for the respondent.
   Jenks, J.:

This action is by servant' against master for negligence. The plaintiff had worked for a month, at a machine whose rollers set with teeth tore apart matted hair placed therein in one room and •then blew it out upon the floor of a second room. The plaintiff testifies that one of his instructions was to pick out of the machine any hair not blown out. He had done so without harm until the instance of which he complains, when his attempt resulted in the cutting off of his hand. Even the plaintiff testified that he was instructed to stop the machine before he went into thesecond room, and he also testified that the machine was at rest when he received the instruction to pick out the hair. The machine was stopped, so-far as power was shut off, by the shifting of a belt by this plaintiff, and necessarily‘in the first room. Hence it would follow that there could be no question of defect or error in the instruction as to picking. out hair, which must be done in the second room, but for the fact known both by servant and master that the shifting of the belt did not stop the machine so that its motion ceased at once, but the rollers continued to move for a short time until momentum died. Under such conditions the plaintiff could have stopped the machine, i. e., have shut off the power, and yet have gone to his work in the second room and could have thrust his hand into the machine to pick out the hair when its rollers still were in revolution. This condition is in the version of the plaintiff. And so the learned court submitted the question to the jury whether the instruction involved an element of risk unknown to the plaintiff. The question then was whether the defendant fell short of proper instruction in his omission to warn the plaintiff that it was dangerous if he put his hand into the machine to pick out hair while the rollers' were in motion.

But I think that the evidence, is not sufficient to support a conclusion that the plaintiff was free from contributory negligence. He understood fully that the machine consisted of iron rollers set with teeth, which revolved to tear the hair into pieces,, but he testifies that looking into the back of the machine he could not see the ■ machinery, the rollers or the teeth at all, that he did not know they were there or that there was any machinery there — that there was nothing there but blackness. The back of the machine projected into the second room, which was about 5 feet by 8 feet in dimensions, and lighted by a window. Artificial light was not used in that room. The testimony of the foreman, of Smith, a merchant familiar with the premises and the machine," of Ryan and of Liken, a former employee, is that the rollers and the teeth were plainly and distinctly visible from all parts of this room. And the. photograph taken under conditions which point to its accuracy, strongly corroborates their testimony. I think that the great preponderance of evidence is that these rollers and their teeth must have been seen by any one who had observed the -machine. It hardly seems credible that one could have worked upon it and about it for a month without seeing them. Such an injury must have come when the rollers were in motion. There is no suggestion that there was any danger in picking out the hair when the teeth were at rest, and, as I have said, the plaintiff had picked out hair at other times without in jury. If the plaintiff put. his hand into the moving machine when its rollers were in motion without waiting for the machine to come to rest, when the act could have been done, I think that he was chargeable with contributory negligence. (Hickey v. Taaffe, 105 N. Y. 26; Buckley v. Gutta Percha & R. M. Co., 113 id. 540; Crown v. Orr, 140 id. 450.) I may add that the testimony of six-fellow-workers is that almost immediately after the accident the plaintiff said that it was his own fault. This was not denied by the plaintiff, although the physician who saw him shortly after the accident testified that he • did . not think the. plaintiff -could talk intelligently, and a policeman who saw the .plaintiff about the same time testifies that he could not elicit answers to questions.

The judgment must be reversed and a new trial must be granted, costs to abide the-event.

Woodward, Thomas and Bich, JJ., concurred; Hirschberg, B. J., dissented.

Judgment and order reversed- and new trial granted, costs to abide the event. ■  