
    Herman Lazarus, an Infant, by Max Lazarus, His Guardian ad Litem, Appellant, v. Antonio Eisler and William H. Lambert, Copartners, Doing Business under the Firm Name of “Antonio Eisler & Company,” Respondents.
    Second Department,
    May 1, 1912.
    Blaster and servant — negligence — injury by printing press — evidence —prima facie case — assumption of risks — contributory negligence.
    A feeder, after a printing press came to a complete rest, attempted to remedy a defect in type impression and had his hand caught by the “ gripper.” The press started while he was trying to get his hand loose, and so bruised one of his fingers that it became necessary to amputate it. The machine was started and stopped by means of a “ tight pulley ” and a “ loose pulley.”
    In an action to recover for the inj ury received, it was shown that neither the plaintiff nor any other employee had' shifted the belt back from the “loose pulley ” to the “tight pulley,” and that the machine could not have started without the belt getting upon the “tight pulley,” and that unless the prongs on the lever were loose and out of order, so as to permit the belt to pass over, there was no way of accounting for the accident. Held, that plaintiff established a, prima facie case.
    The question as to assumption of risks does not arise where an employee is injured after working on a machine only ten minutes and before noticing anything wrong with the mechanism.
    The failure of the plaintiff to press a brake with Ms foot, wMeh would have made it impossible for the maeMne to start, was not contributory negligence as a matter of law, as the maeMne was at a complete rest when plamtiff attempted to fix it.
    The failure of an employee to use extraordinary care does not amount to contributory negligence as a matter of law.
    Appeal by the plaintiff, Herman Lazarus, an infant, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 30th day of March, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 21st day of April, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      
      Andrew Byrne [L. F. Fish and Thomas J. O’Neill with him on the brief], for the appellant.
    
      F. Clyde Sherwood [Amos H. Stephens with him on the brief], for the respondents.
   Carr, J.:

This is an action brought by a servant against his master to recover damages for personal injuries arising from alleged negligence of the master.

The plaintiff, at the time of the accident, was about eighteen years of age. He was employed as a “ feeder ” upon a printing press. He had an experience in this work of about a year and a half. He was familiar with the type of press upon which he was working, though his experience upon the press in question was of about ten minutes. Power was put on and taken off this press by belting which revolved around pulleys at its'side.. To put on power, the belting was shifted to a “tight pulley,” and to .take off power it was shifted to the “loose pulley.” According to the plaintiff’s testimony, he noticed that while printing the sheets some of the type did not make a good impression. He stopped the machine and turned back a few feet to get some appliances to remedy the defect. When he returned to his press, it was at a complete rest. While remedying the defect of type impression, it was necessary for him to put his hand in between the bed and the upper plate of the press. His hand was caught back of the knuckles by a part of the mechanism known as “.the gripper.” While trying to get his hand loose, the press started and so bruised one of his fingers that it became necessary to amputate it. He gave proof by an expert witness which tended to show that there was no other way to start the press except by the belting coming upon the tight pulley. This could happen only from one of two causes, either the act of the plaintiff himself in shifting the lever, or by the belt “ joggling ” off the “loose pulley ” onto the “tight pulley.'' . This latter result could happen only if certain “ prongs ” which were on the lever had become loosened and failed to keep the belt in its proper place. Both pulleys were located side by side with but little intervening space. The plaintiff’s testimony eliminated any question of an act on his part which shifted the lever. There was no one else about the machine to whom such a shifting might be attributed, hence it was argued that at least a prima facie case was made out that the prongs on the lever were loose and out of order. As the plaintiff had been working on this machine but about ten minutes, and had not noticed anything wrong with the mechanism, there was no question in the case as to assumption of risks.

The learned trial court dismissed the complaint at the close of the plaintiff’s case, and it is apparent .from the record that the trial court was of opinion that the plaintiff was guilty of contributory negligence as a matter of law, and it so declared expressly. This opinion was based upon facts as follows: There was attached to the press a brake operated by the “ feeder’s ” foot; when this brake was pressed down it was impossible for the machine to start; the plaintiff was familiar with the use of the brake but did not then use it. The failure to use it the trial court considered to he contributory negligence as a matter of law. In this opinion it erred. According to the plaintiff’s testimony the machine was at complete rest when he put his hand between the bed and the plate; therefore, there was no occasion to use the brake to' stop the machine. It had been stopped already. The only purpose of pressing down the brake, under these circumstances, would have been one of extra precaution against some possible danger arising out of some defect somewhere in the mechanism. It is not suggested that the plaintiff knew or had any reason to suspect such defect. Therefore, his failure to use the brake was-not a failure to use ordinary care' hut a failure to exercise extraordinary caution, and such failure could not amount to contributory negligence as a matter of law.

It is argued, however, that nevertheless the complaint was dismissed properly enough because the plaintiff’s proofs did not establish any negligence upon the part of the defendant. These proofs, however, went far enough to show that neither the plaintiff nor any other employee had shifted the belt hack from the ‘ ‘ loose pulley ” to the ‘ tight pulley, ” and that the machine could not have started without the belt getting in some way upon the “ tight pulley,” and that unless the “ prongs ” on the lever were loose and out of order, so as to permit the belt to “ joggle ” over, there was no way of accounting for the accident.

Speaking as to this case alone, we think these proofs were sufficient to require a submission of the plaintiff’s case to the' jury, in the absence of any explanation from the. defendant. (Koehler v. N. Y. Steam Co., 183 N. Y. 1.)

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

Jerks, P. J., Hirschberg, Thomas and Woodward, JJ., concurred.

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