
    Sarah Knisley, App’lt, v. Pascal P. Pratt et al, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Failed January, 18, 1894.)
    
    1. Master and servant—Machinery.
    The provision, in § 12, chap. 893 oí 1890, as to guarding machinery of every description is mandatory, but that, in respect to the supplying of belt shifters, is within the discretion of the factory inspectors.
    2. Same.
    A failure on the part of the factory owner to perform a duty imposed by the statute, where, as a consequence, an injury results to another, is evidence of negligence.
    8. Same.
    Risks, incident to such failure, is not assumed by the servant.
    Motion by plaintiff for a new trial on exceptions ordered to be heard at the general term in the first instance after non-suit.
    
      H. G. Day, for pl’ff; John G. Milhurn, for def’ts.
   Haight, J.

This action was brought to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendants, in their factory, in the city of Buffalo. She was engaged in operating what is known as a “punching machine.” The machine was placed upon a bench 32 inches from the floor. It was 22 inches wide and 4 feet high. The machine was of iron, and was securely bolted to the bench. There were iron posts on either side, extending to the top. Hear the top was a shaftpassing through the posts, on one end of which was a drum and belt connecting with shafting in the upper portion of the building. On the other end of the shaft there was a small cogwheel, about 7 inches in diameter, running close to the frame, outside of which was a large fly wheel. Underneath this shaft was another shaft, having a cogwheel about 2 feet in diameter, which was operated from the cogwheel on the upper shaft. In the center of the lower shaft was an iron rod or arm, to which was attached the punch, arranged on an eccentric, so that the revolution of the shaft caused the punch to rise and lower. There were five of these machines standing upon the bench, similarly constructed. They had no appliance for shifting the belt from the drum so as to stop the machine, or covers for the cogwheels. Opposite each wheel, and about an inch therefrom, was a place for oiling the shafts at their bearings upon the frame. The plaintiff entered the employ of the defendants in May, 1890, and continued in their employ until the close of September 24, 1891. On that day she was operating the machine described. A few minutes before quitting time,- the whistle was sounded, and the girls operating the machines were then required to take a handful of waste provided by the superintendent, and clean the machines, wiping the oil therefrom while the same were in motion. The floor of the building was uneven. It was filled with machinery in operation, making a great noise, so that the operators sitting at the same table could not hear’ one another talk. The plaintiff was attempting to wipe the oil from the upper hearings, near the cogwheels. To do so, she had to stand upon her tiptoes; and, while so engaged, the cogwheels caught the waste in her hand, or else her hand slipped upon the oily portion between the wheels,'—she is unable to say which,— and her hand and arm were crushed.

Were the defendants chargeable with negligence ? The statute provides that:

“ It shall be the duty of the owner of any manufacturing establishm nt or his agent, superintendent or other person in charge of the same, to furnish and supply, or cause to be furnished and supplied, therein, in the discretion of the factory inspector * * * where the machinery is in use, belt shifters or other safe' mechanical contrivances for the purpose of throwing on or off belts or pulleys, and whenever possible machinery therein shall be provided with loose pulleys ; all vats, pans, saws, planers, cogs, gearing and machinery of every description therein shall be properly guarded.” Laws 1890, c. 398, § 12.

It will be observed that the provision in reference to the supplying of belt shifter is left within the discretion of the factory inspector, but that in reference to guarding “vats, pans, saws, planers, cogs, gearing and machinery of every description,” the provision is mandatory. While the - provision in reference to guarding the machinery is mandatory, it must, doubtless, receive a reasonable construction, and the guarding mentioned must have reference to that portion of the machinery which is so located as to be dangerous. The cogwheels causing the injury were about six feet above the floor, and may not, in consequence thereof, have been considered dangerous, in the ordinary operation of the machine, but may become dangerous when the operator undertakes to clean the same. There was no evidence showing that the factory inspector had required the defendants to supply belt shifters, so that they cannot be said to have violated the statute in this regard. The absence of belt shifters, however, becomes important as bearing upon the fact that the cleaning of the machines was required to be done while they were in motion. If the machines could have been stopped, the cleaning could have been done with absolute safety; but cleaning while in motion, with uncovered cogwheels, became extremely hazardous. And it appears that this fact was understood and appreciated by the defendants, for in another room in' the factory were three other machines, of similar construction, which had belt shifters, one of which had been formerly operated by this plaintiff; and when she commenced to operate the same she was instructed how to shift the belt, and directed never to attempt to clean the machine until she had shifted the belt, and stopped its motion. The statute to which we have alluded was designed to afford an additional safeguard to employes in factories. It casts upon the employer the ■duty of guarding machinery that is dangerous. A failure on the part of the owners of factories to perform a duty imposed by the statutes, where, as a consequence, an injury results to another, is evidence of negligence. McRickard v. Flint, 114 N. Y. 222, 226; 23 St. Rep. 100. While a master may. carry on his business with an old machine not provided with all the safeguards attached to new machines, unless required by the statute, he is ordinarly ■chargeable with the knowledge of the means necessary to be employed in the performing of his work, and is required to exercise proper care and precaution in guarding against the risks incident to the employment. He must, consequently, furnish his employes a safe place to work, sound and suitable tools, implements, appliances, and machinery, and must keep the same in repair. Benzing v. Steinway, 101 N. Y. 547, 552 ; McGovern v. Central Vt. Railroad Co., 123 N. Y. 280 ; 33 St. Rep. 416. Had the defendants fully discharged their duty the plaintiff in this regard ? Under the evidence, it appears to us that this question could properly be answered only by the jury.

Was the plaintiff guilty of contributory negligence? As we have seen, she was required to clean the machine while it was in motion, a portion of which was within an inch of the revolving cogwheels. In order to reach this place, she was compelled to stand upon her tiptoes on an uneven floor. There may have been some tremor to the building, owing to the machinery that was running therein. While standing in this unsteady position, her hand slipped, or the waste in her fingers suddenly caught in the cogs, drawing her hand within the wheels. We think this question should also be answered by the jury.

Did she, by her contract of employment, assume these risks? The trial court was of the opinion that she did, and for this reason ordered a nonsuit. The general rule, doubtless, is that a servant who enters the employment of a master assumes the risk incident to such employment, where the dangerous structures or implements are open and visible, and known to him. DeForest v. Jewett, 88 N. Y. 264; Sweeney v. Berlin & Jones Envelope Co. 101 N. Y. 520; Hickey v. Taaffe, 105 N. Y. 26; 6 St. Rep. 426 ; Appel v. Buffalo, N. Y. & P. Railway Co., 111 N. Y. 550; 20 St. Rep. 90. These cases were fully considered and discussed in the dissenting opinion in Eldridge v. Atlas Steamship Co., 134 N. Y. 187, 193 ; 48 St. Rep. 257; but this rule is founded upon the assumption that the master has discharged his duty to the employe, and consequently is not chargeable with negligence. In the De Forest Case there were ditches in the yard. They were open and visible,and known- to the employe; but he stepped into one, and fell under a passing train. In that case there was no statute requiring the ditches to be covered. Consequently, the railroad company was not chargeable with the omission of duty, or negligence. In the Appel Case, the plaintiff stepped into a i'rog, caught his foot, and was run over by a train. The frog was a necessary, open, visible structure in the yard, and was known to him., There was no statute requiring it to be blocked, and the company owed him no duty in that regard. In the Eldridge Case, the wheels of the winch were open and visible, and known to the • plaintiff, who had operated it on previous occasions,- but the statute did not require the wheels to be covered; and the same may be said in the Sweeney Case. Had the statutes required covers, in these cases, a different question would have been presented. In Benzing v. Steinway, supra, Euger, C. J., in delivering the opinion of the court, says :

“ It has been repeatedly held that the risks of the service which a servant assumes, in entering the employment of a master, are those, only,, which occur after the due performance by the employer of those duties which the law enjoins upon him-.”

And in McGovern v. Central Vt. Railroad Co., supra, the chief judge says:

“ It may, wé think, be laid down, as a general rule, that the dangers connected with such a business, which are unavoidable after the exercise by the master of proper care and precaution in ■guarding against them, are risks incident to the employment, and are assumed by those who consent to accept employment under such circumstances ; but those dangers which are known, and can be mitigated or avoided by the exercise of reasonable care and precaution on the part of those carrying on the business, and injuries from which happen through neglect to exercise such care, are not incident to the business, and the master is generally liable for damages occurring therefrom.”

The. trial court appears to have based its decision upon White v. Witteman Lithographic Co., 131 N. Y. 631; 43 St. Rep. 312. In that case the trial court, in its charge, said:

“ Then, again, it is also claimed, or suggested, at any rate, that the defendant failed in not guarding this machine in a particular manner, described by the same statute to which I have referred. But that point is not available against the defendant, under the evidence in this case, because the boy was aware of theyibsence of the guards, and he must be held to have assumed the risks of working on the machine without a guard.”

The judgment was affirmed on review, but we do not under- ' stand that the charge was held to be correct Earl, C. J., in delivering the opinion of the court, says, in reference to it: '

“ It is not always true that the absence of guards about the machinery, in such a case, provided the boy knew it, can have no-bearing upon the liability of the employer. The boy might unintentionally, and without fault on his part, come in contact with the machinery, or accidentally -fall or be thrown against it; and thus the absence of guards which would have protected him might constitute the negligence which would impose liability upon the employer. But here the boy not only knew that the guards were not there, but, according to his own evidence, they would have been of no service if t.hey had been there, because, having intelligence enough to take care of himself, and to understand and appreciate the machinery, and the danger to be apprehended from it, he intentionally went to the place where he was injured, and took hold of the lever with his right hand, knowing what the effect would be, and intending to produce that effect, and then, carelessly or thoughtlessly, thrust his left hand into the wheels. It is impossible to conceive how any ordinary guards would have saved him from the injury.”

As we understand the opinion, the charge was held not to be reversible error for the reason that the evidence showed that the guards, had they been there, would not have prevented the accident. We, consequently, are of the opinion that if it should be found that the defendants owed the plaintiff a duty which was not discharged, and that they were guilty of negligence in not performing it, and the injury was the result of such omission of duty, the risk was not such as was assumed by her. At follows that the exception to the non-suit was well taken, and that a new trial should be granted, with costs to abide the event.

All concur.  