
    James Toye, Respondent, v. United Dressed Beef Company of New York (Sued as United Dressed Beef Company), Appellant.
    First Department,
    December 2, 1910.
    Master and servant — negligence — injury to oiler — guard on "cross-head”— machine of regular type — assumption of risk — promise to remedy defect.
    ■Where an employer purchases from.a reliable manufacturer a machine fully equipped with all usual guards and appliances in customary use by others in the sainé line of business, he has a right to use the machine in the condition in which it is furnished without any imputation of negligence because it might Have been safer if made in some other way.
    Where a workman, who for over a year had oiled a refrigerating machine several times a day and had been accustomed to use a stepladder to perform- part of the work, not finding the ladder climbed upon the framework of the machine to oil the upper parts and while so doing slipped, and, catching his foot in the “crosshead” which was in motion, was injured, the mhster cannot be held liable for failure to guard the “crosshead," if it appears that it was impracticable to cover that part of the machine and that although numbers of such machines were in use, none of them had such a guard.
    
      Moreover, where the plaintiff, who had had a year’s experience with the machine, testified that he knew it was in motion when he started to oil it and knew that, if he caught his foot in the “crosshead” it would be injured, he assumed the risk when he climbed upon the framework.
    Although the chief engineer, nine months before the accident, had promised to see that the “crosshead” was guarded, the plaintiff was only relieved from assuming the ri§k for a reasonable time thereafter.
    Appeal by the defendant, the United- Dressed Beef Company of ■ New' York,* from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New Y ork on the lUli day of November, 1909, upon the verdict of a jui-y for $2,000, and also from an order entered in said clerk’s office on the 22d day of November, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frcmk V. Johnson, for the appellant.
    
      Alfred Sleekier, for the respondent.
   McLaughlin, J.:

Action, to recover damages for personal injuries alleged to have been caused by defendant’s negligence. Plaintiff had a verdict of $2,000, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.

The defendant, at the time in question, maintained a plant in the city of New York in which was a refrigerating machine. The plant was a large one and there were .three sets of employees, each working eight hours a day. The plaintiff was, at the time of the injury and for over a year prior thereto had been, one of the employees, and his duty consisted in oiling the machine several times each day. Portions of the machine could not be oiled by a person standing on the floor, but were ordinarily reached by means of a stepladder. The accident occurred about one o’clock in the afternoon, plaintiff having oiled the machine at least once before on the same day. Not finding the stepladder in the engine room, the plaintiff undertook to climb upon the framework of the machine in order to oil . the parts which could not be reached from the floor, and for this purpose he stepped upon a small box, then stepped upon the top of the machine' and in doing so slipped and his left foot was caught and injured by the “ crosshead ” of the machine which was in motion. _ ¡

Several allegations of negligence were charged in the complaint, but at the conclusion of the trial the only one subjmitted to the jury was whether ■ the defendant, in the exercise of reasonable care, should have guarded the crosshead, the court charging the jury that no liability can be predicated upon the fapt that the ladder supplied by the defendant was not at hand when needed by the plaintiff on the-occasion of this accident,” and “ that the defendant was not obliged to watch this ladder to see that it | was at hand at all times, and if it was temporarily removed by á fellow workman the defendant is not responsible for such an act.?’ The finding of the jury that the defendant was negligent in tliisj respect is clearly against the weight of evidence. The only •testimony tending to show that the crosshead on a similar machine was incloJed or covered was that of one witness, who simply testified that he had worked about six • weeks in the fall' of 1906 in a brewery in the city ofj Hew York where they had a larger machine, but of the same make, and that the crosshead upon that machine was' covered. Whilp employed in the brewery he was not an oiler in the engine room, blit was occasionally in it. He was contradicted by at least three witnesses, two of whom were employed in the engine room in the brewery, jan d had charge of. the machinery therein, both of whom testified tliat at no time was there any covering over the crosshead; and the othjsr witness — Iiedley — who testified that for fifteen years he had ¡been an inspector of the De La Vergne Machine Company, manufacturers of the machine in question, and that the crosshe'ad on thfe machine in the brewery referred to was not covered. This witness also testified, and his testimony is uncontradicted, that there were about a thousand of such machines made and sold in the United States; that the same • design had been used for the last thirty years; tlia; they were at the present time being manufactured and sold, and never at any time had the crossheads been covered; and that it was not ¡practicable—and two other witnesses testified to-the same effect —i- taking into consideration the use and the inspection which had to be made of the cross'heád to cover it. ■ How, under such circumstances, can it be said that the defendant failed to perform the dutjy which it owed .the plaintiff by not protecting the crosshead injsome way? The learned trial court apparently appreciated the situation by instruct-. ing the jury that a master is not bound to furnish the best-known appliances, but only such as are reasonably fit and safe, and when an employer purchases an engine or machine at a reputable manufacturer’s, fully equipped with all the usual guards and appliances in customary use by men in the same line of business, he has a right to use this machine in the condition in which such machine is furnished to him, in connection with his business, without any imputation of negligence, because it might have been made safer if made and equipped some other way.” The rule as thus stated became the law of the case, and must be applied to the facts proved. (Wangler v. Swift, 90 N. Y. 38; Marks v. Rochester R. Co., 146 id. 181.) When so applied, there being no other claim of negligence, the complaint should have been dismissed. (Sweeney v. Berlin & Jones Envelope Co., 101 N. Y. 520; Burke v. Witherbee, 98 id. 562; Harley v. Buffalo Car Mfg. Co., 142 id. 31.)

Again, the risk incident to the uncovered crosshead was obvious and apparent to the plaintiff. He had been engaged in working about the machine for over a year before his injury. It was perfectly clear to him that if his foot came in contact with the moving crosshead he would he injured. He knew that it was in' motion. He testified : “I saw that when I started to go and oil the governor. I knew it was in motion. * * * I knew if my foot got in , there, there would be an accident. I. knew if I got my foot in there it would be injured.” It was a risk incident to the work which was assumed by the plaintiff. (Crown v. Orr, 140 N. Y. 450 ; Knisley v. Pratt, 148 id. 372; Dillon v. Nat. Coal Tar Co., 181 id. 215; Dixon v. N. Y., O. & W. R. Co., 198 id. 58.) The plaintiff not only knew there was some danger in oiling the machine while it was in motion, but fully appreciated it, because, according to his own testimony, some nine months before he was injured he told"the chief engineer that the crosshead ought to be guarded, and lie said that he would attend to it.” The promise of the chief engineer to remedy the defect complained of might relieve the plaintiff from assuming the risk for a reasonable time, but could not do so for a period of nine months. (Rice v. Eureka Paper Co., 174 N. Y. 385; Stokes v. Barber Asphalt Paving Co., 134 App. Div. 363.)

Upon both grounds, therefore, it seems to me the judgment ■ and order appealed from should be reversed, and a new trial granted, with costs to appellant to abide tlie event. j .

Clarke,. Soott and Dowling, JJ., concurred; Ingraham, P. J., concurred on the first ground..

Judgment and order reversed, new trial ordeijed, costs to appellant to abide event. 1 .  