
    Samuel Goldstein, an Infant, by William Hawkin, His Guardian ad Litem, Respondent, v. Jacob H. Werbelovsky, Appellant.
    Second Department,
    November 23, 1910.
    Master and servant—negligence—injury by glass-polishing machine— charge to jury.
    Where in an action by a workman employed to 'operate a glass-polishing machine to recover for injuries sustained by the breaking of the glass, plaintiff testified that the foreman two or three' days before the accident assured him that the machine was safe, and further testifies that after'such assurance and up to the ■ time of the accident it worked all right, it is error to charge the jury that, if they believe the plaintiff’s testimony, and that, relying on the assurance given" by the foreman-and. not actually'knowing to'the contrary as to the safety- of' the machine he resumed his work, then the plaintiff- would hot be guilty of contributory negligence, as there were various, matters which might constitute contributory negligence .entirely apart from the assurance on the- part of the foreman. - - ' "
    Hibsohbbrg, P; J., dissented. .
    Appeal by-the defendant, Jacob H. .Werbelovsky, from , a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on. the 21st day of January, 1910, upon the'verdict of' a jury for $1,000, and also from an order made on the 24th day of January, 1910, and' entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.'.
    
      James J. Mahoney [M: J. Wright - 'with him on the brief], for the appellant.
    
      ■Oharles Goldzier [Moses U.. Grossman with him on the brief], for the respondent. , ' - ,-
   Woodward, J.:

The plaintiff has a judgment for $1,173:38 entered upon the verdict of a jury in an action to recover damages for personal injuries. Plaintiff was employed to operate a glass-polishing machine, which consists of a wheel of wood, covered with felt, and'turned at-the rate, of 200 to 250 revolutions a minute. The process. of operating is-to .wet the felt and apply rouge and then to hold the beveled edge of the glass against the revolving wheel. The contrivance is about as simple as it is possible to conceive of, and the plaintiff’s testimony shows that while thus operating ■ this machine, the plate glass, weighing about thirty .pounds, broke and cut the plaintiff’s arm. It is1 impossible to tell from the evidence what caused the glass to break. It is the plaintiff’s theory that the felt covering had worn down thin, exposing the nail heads which had been used in fastening the felt to the wheel in the usual manner, and that one of these nail heads coming in contact with the glass had produced the break, but it hardly seems possible that a revolving wheel could have worn down in such a way as to leave the nail heads exposed so as to break the glass without its having been obvious for some time that the nail was protruding, and the plaintiff, who had worked in the place for eight months and who had worked upon this particular machine,, should have observed the condition and made the ordinary repairs which the situation demanded. But passing this, the evidence does not show that this was the cause of the bréale; the "evidence shows that the felt, if let run dry, would heat the glass and cause it to break, and that the plaintiff, holding the glass upon the wheel, called to one of his coemployees to come and put water on the wheel, and that at about this time the plaintiff says he heard a peculiar click or' noise and the glass broke. Here was a condition which invited a break; the felt was dry enough so that the operator realized that it needed wetting ; he does not pretend to say that he had observed whether the glass was hot or not, but when the coemployee placed water on the wheel it was followed by the noise which he describes and the breaking of the glass. Clearly it was quite as likely that the glass, held snugly to the revolving wheel, had become heated, and that the application of water caused the break, as that the break was caused by. the nail heads. It is equally clear that the plate of glass may have been inadvertently pressed too hard upon the wheel, the leverage, with the heating at the given point, producing the break. One thing is certain, the plaintiff does not clearly point out the cause of the injury; it is left entirely to speculation, and in such a case it is not -in the interests of justice to permit the jury to guess. The gravamen of the action is the alleged negligence of the defendant in not supplying a reasonably safe machine or appliance, and without disclosing any particular defect which resulted in the accident, the jury has been permitted to hold the defendant liable, a result which cannot be . justified by any rule with which we are familiar.

The court, after charging the jury upon the rules of law govern* ing the case, was asked to charge: “ If the jury believe the statement óf the plaintiff that the foreman, after examining this machine and doing, whatever work he did, told the boy that it was safe and that he could return'to work, and that the plaintiff,- relying upon that statement, not actually knowing to the contrary as to its safety and resumed his work under such conditions, then the plaintiff would not be guilty 'of contributory negligence,”' and the court so charged: The defendant excepted to this charge, and now urges that this constituted reversible error. As we have already pointed out, it was not shown that the alleged defect, which the fore-, man had repaired, was the cause of the' accident, but beyond this, there were.various matters which might constitute coutributory negligence, entirely apart from this alleged assurance on the part of the foreman. The question was not whether the jury believed the plaintiff as to a particular matter, but whether the facts as brought out by. the evidence justified a holding" that the plaintiff had been free from contributory negligence at the time of the accident. The alleged assurance on the part of the foreman was given, not at the.time of the accident, but two or three days before, and the witness had testified that the machine worked all- right after the alleged assurance, and .up to' the time of the. accident. (See Kellegher v. Forty-second St., etc., R. R. Co., 171 N. Y. 309, 312.) We agree with the defendant that this, charge was erroneous, and that it justifies a.re versal of-the judgment. • 1

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

Burr, J., concurred ;' Rich and Caer, JJ., concurred on the last ground.stated in the opinion ; HiRsoriBERé, P. J., dissented.- ■

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