
    Owen O’Hare, Respondent, v. O’Rourke Engineering Construction Company, Appellant.
    First Department,
    December 30, 1909.
    Master and servant — negligence — Employers’ Liability Act — contributory negligence— assuming dangerous position.
    A servant who voluntarily placed himself in a dangerous position not provided for him or required in tlie performance of the work cannot complain that the place was unsafe.
    Where an engineer employed to operate an electric hoist went upon the platform .from which it was operated before he was required to do so and was injured ■ by reason of the jarring of the hoist, and he did not need to go on the platform until the engineer whom he relieved was ready to leave .and the place was safe for employees who were required to be there and it appears that the accident was caused by his taking a position where he was not expected to be, he ' cannot recover..
    Appeal by the defendant, the O’Rourke Engineering Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of March, 1909, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 18th day of March, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bertrand L. Pettigrew, for the appellant.
    
      M. L. Malevinsky, for the respondent.
   Ingraham, J.':

The action was brought to recover for personal injuries, the plaintiff being an engineer employed by the defendant to operate an electrical hoist. The complaint alleges that the plaintiff, while engaged in the course of his duties Upon a platform used by the defendant was, by reason of the said platform being set in motion, and by reason of the violent jarring and vibration of said platform while in motion, forced or thrown against one of the posts or uprights, and in endeavoring to save himself from falling from said platform, his hand became caught in a cable and was drawn into a drum, inflicting upon him severe and lasting injuries ; that the accident was caused by the negligence of the defendant in failing to provide a platform of sufficient width for the plaintiff to safely stand and work upon, and in allowing and permitting certain posts or uprights to be erected and maintained in close and dangerous proximity, and in failing to provide for the jflaintiff a safe place in which to work and proper, adequate and sufficient guards, rails and protective devices for the protection of the plaintiff while in the performance of his duty. Notice was served under the Employers’ Liability Act (Laws of 1902, chap. 600). The plaintiff testified that on April 30, 1907, he was working for the defendant in constructing a building; that at that time the defendant was sinking the caissons for the foundation; that plaintiff had been working there about three months altogether, and that as the work progressed the position of those hoists was changed from place to place; that the hoists were placed on a platform upon which the engineer stood in operating the machine; that at eleven o’clock at night plaintiff was to relieve another engineer whose time of service then expired ; that plaintiff had worked on this particular machine three or four nights before^ and there were other machines of like character being operated in constructing the same building; that while the plaintiff was at work, he had to stand by the' machines and pull levers and watch every signal tó work the machines; that just before eleven o’clock when he went to relieve the other engineer he jumped up upon this platform and stood watching the other engineer working the machine; that while he was standing there the other engineer got a signal to elevate a bucket of concrete and in so doing the plaintiff was thrown over against the drum. This platform upon which the plaintiff stood revolved as the concrete was hoisted. There was no regulation by.which the plaintiff was required to place himself in this position and stand on the moving platform behind the engineer who was operating the machine. The evidence is uncontradictéd that the accident was caused by reason of the plaintiff placing himself in a position in which he was not required or expected to place himself. So far as appears, the machine was perfectly safe for the employees who were required to operate it. A person voluntarily placing himself in a-position of danger which was not provided for him and where lie was not required in the performance of his work could not complain because the place that he thus voluntarily occupied was unsafe. The plaintiff testified that in operating that hoist nobody’s duties called him on that platform except the engineer and the signalman. There was a temporary bench for the engineer who operated the hoist, and on that bench he was not in danger. The platforms were made as large as they could be and fit in between the uprights. The plaintiff stated that if he had happened to notice the upright he would not have stood where he would have been hit; that he did not dream of its being so close; that he had often stood upon this platform, but had never been hit by ah upright before; that before when he stood there he stood where he did not get hit; a witness called by the plaintiff who saw the accident testified that there was .no occasion for any one to get on the engine platform, except the engineer and the signalman, and that the relieving engineer conld just as well remain off the platform until it was time for him to go to work.

I think there was no evidence to show that this machine was not a proper one for the use to which it was put .; that it provided a perfectly safe and proper place for the engineer; that the plaintiff voluntarily placed himself in a position not intended for an employee of the defendant and the fact that lie was injured in that position was not due to any negligence of the defendant.

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

' Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  