
    John Graves, Appellant, v. Edward H. Brewer and David H. Brown, Respondents.
    
      Negligence — when the fact of a servant’s hand being caught in cog wheels gives no right of action—a direction to clean the machiné while in motion does not alter the case—nor does the Factory Act, requiring cog wheels to be covered—Laws 1886, chap. 409.
    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff, who had some knowledge of machinery, was working on a machine on which cog wheels, plainly visible, fitted into each other, and was told how to operate the machine and to stop the machine when he cleaned it, which he did for several weeks, until the . machine got out of order- to some extent so that it could not be easily stopped; after which he was told to clean the machine while it was in motion; he did this the first time without any trouble or difficulty, but on a subsequent occasion his hand was drawn in between the cogs and he was injured.
    
      Held, that the plaintiff could not recover;
    That the danger was apparent, and was one of the risks of the employment;
    That as the plaintiff testified that he knew “the whole situation and location” of the wheels in question his position was not improved by the fact that he had been told a week before to clean the machine while it was in motion.
    The liability is not changed in such a case by the Factory Act requiring cog wheels to be covered.
    Appeal by the plaintiff, John Graves, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cortland on the 24th day of October, 1894, upon a nonsuit granted by the court after a trial before the court and .a jury at the Cortland Circuit, with notice of an intention to bring up for. review upon such appeal an order entered in said clerk’s office on the 11th day of October, 1894, denying the plaintiff’s motion for a new trial-made upon the minutes.
    
      William Kennedy and W. C. Crombie, for the appellant.
    
      Kellogg & Van Hoesen, for the respondents.
   Merwin, J.:

. On the. Yth or 8th of December, 1892, the plaintiff entered into the employ of the defendants as an operator of an Upsetting machine in defendants’ shop. He continued in their employ to the 28th of January, 1893, when he received an injury to his hand by its coming in contact with uncovered moving cog wheels on the side of the machine. In this action the plaintiff claims to recover damages for this injury on the ground that it was caused by the negligence of the defendants.

The machine at which plaintiff worked Was an iron machine, standing about three feet high from the floor. , It was four or five feet long, and at the east end, where plaintiff stood while engaged in running it, it was about tWo and a half feet wide, and at the west end it was less than two feet wide. On the south side at the west end. there were two cog wheels-'that meshed together, one about two feet across ahd the other about six inches. - Power was received from overhead shafting by means of a belt running, down and attached, to a pulley on the north side of the table. This pulley was oil a; shaft -that ran .across the table, to the .small cog wheel. The large cog wheel was on -a shaft that ran across, the table and was connected with the upsetting apparatus. The cog wheels in motion ran away from each -other on the top. On the- top of each shaft an inch or two from, the wheel there was an oil cup. -

The plaintiff was then about twenty-four- years of -age, and before this employment-knew in a general Way how machinery was run by-wheels and cogs, that work into each other. When he went to work for defendants- he was told how to operate -the .machine. It was started and'stopped by a,lever on the north -side and the' use ofthis wias also explained. The plaintiff went to work and had' no difficulty ■in running" the machine. On the first Saturday after he commenced, the superintendent, Mr. Steele, came .to him, stopped the machine, got a handful of waste supplied for that purpose and told the plaintiff to take it and wipe all the grease and dirt off the top of the machine and clean out the oil cups, and he showed the plaintiff how to do it. The superintendent then told the plaintiff to stop the machine every Saturday night in time to wipe it up and get through ■before five o’clock. This the plaintiff did for several weeks. About the twentieth of January following there was some breakage in the machine, and thereafter, for the purpose apparently of preventing the machine getting out of gear while in operation, the lever was tied to the side of the. machine and the plaintiff was told not to untie it, as it would have to be fixed. On the following Saturday night the plaintiff got ready to clean the machine, and then, as he testifies, I went Over and asked Mr. Steele how I was going to clean it. He was measuring some joints. He said: Go on and wipe it, it is all right.’ I asked him if I could wipe it when running. He said, ‘ Tes, go on and wipe it,’ and I went on and wiped it. I wiped it with waste. Just as I had done before,, except that the machine ■was running instead of being stopped.” He wiped it then, as he testifies, without any trouble of difficulty. After this he continued at work at the machine in the same shop until the next or the second Saturday following, he is not certain which. Then, without anything further being said between him and the defendants, or their superintendent, he proceeded to clean the machine while in motion, as he had formerly done, and while cleaning out the oil cup, near the small wheel, his hand was in some way catight and drawn into the wheels and injured. He was then standing on the south side of the machine, near the west end, and was reaching over one side of the small wheel.

At the close of the evidence on the part of plaintiff the defendants moved for a nonsuit upon the grounds, among others, that the plaintiff was guilty of contributory negligence; that the danger was obvious and apparent and the plaintiff assumed the risk. The_ motion was granted,, it being said by the court that it was granted on the ground that it appears from the evidence that the defects complained of were obvious and apparent, as much so to the plaintiff as they were to the defendants or their superintendent, and that for that reason the plaintiff cannot recover for damages arising from those defects.” The claim of plaintiff is that the question of plaintiff’s contributory negligence and the assumption of the risk should have been submitted to the jury.

The case of Knisley v. Pratt (75 Hun, 323) involved the com sideration of an accident quite similar to the one here. There an employee was injured in cleaning a machine in motion, and her hand was caught between unguarded cog wheels. At the Circuit a nonsuit was granted on the ground that the plaintiff assumed the risk. The General Term reversed the judgment on the ground that the question of contributory negligence was for the jury, and that the rule as to the assumption of risks from unguarded cogs was changed by reason of the statute (Factory Act, chap. 409 of the Laws of 1886, and subsequent amendments) which required employers to furnish special protection to such kind of machinery. This decision is largely relied on in the argument on the part of the plaintiff: It has, however, been recently reversed in the Court of Appeals and the nonsuit affirmed. (148 N. Y. 372.) ■

That case now stands, as authority, I think, for the nonsuit in the present case, unless the plaintiff here has a better position by reason of the direction and assurance of safety given the week before by the defendants’ superintendent.

The danger was as apparent to the plaintiff as to the defendants. He testifies that he understood the full operation and management of the machine as far as his work went; that he knew the whole situation and location there,” • referring to the situation and location of the wheels on the south side of the machine. He asked for no further instructions. In such a case he took the risk although there was a direction to do the act. (Crown v. Orr, 140 N. Y. 450, 455.)

In Daley v. Schaaf (28 Hun, 315) the master had better means of knowledge of the danger than the servant had, and so it was in Kain v. Smith (89 N. Y. 385). In Haas v. Balch (56 Fed. Rep. 984, 987) it is said : “ If, in a given instance, the servant, being of mature age and of ordinary intelligence, has equal knowledge with the master of the dangers to be apprehended, and he voluntarily subjects himself thereto, knowing of their existence, the mere fact •that he had received an assurance that there was no risk to be dreaded or avoided might be of little avail in relieving him from .a charge of contributory negligence.”

Under the circumstances shown in the present case it was in effect held by the trial court that the plaintiff, in continuing his work and undertaking upon the day in question without further objection or instructions to perforin the hazardous work, assumed the obvious risk. No good reason is, I think, apparent for disturbing that conclusion.

All concurred, except Parker, P. J., not sitting.

Judgment and order affirmed, with costs.  