
    Frederick W. Neuweiler, Respondent, v. The Central Brewing Company of New York, Appellant.
    Second Department,
    April 19, 1907.
    Negligence —injury by planing machine — failure to guard knives.
    The questions of a master’s negligence in failing to guard the knives of a planing machine and the assumption-of risk by the plaintiff, an employee, are for the jury.
    
      Appeal by the defendant, The Central Brewing 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 Queens on the 2ith day of July, 1906, upon the verdict of a jury for $3,000,' and also from an order entered in said clerk’s office on the 19th day of July, 1906, denying the defendant’s motion for a new trial made "upon the minutes.
    . JWilliam A. Jones, Jr. {Alden S. Oreme with him on the brief], : for the appellant.
    
      Miehaél J. Soanlan {Edward J. Smith, with him on the brief], for the respondent.
   Gaynor, J.:

' While the plaintiff was planing barrel staves on a steam planing ' machine-one of them drew his hand into the planing knives by a sudden jerk. The knives came up through the table. The questions submitted to'the jury were whether the knives should have been guarded, except the. space necéssary for the board to go through, and, if so, whether the plaintiff had assumed the risk caused by the absence of such a guard. There -was evidence that the guayd was practicable and in use. Section 81 of the Labor Law • requires that certain machinery, including planers ”, shall be properly guarded ; and section 3 .of chapter 600 of the .Laws of 1902 (commonly called the employers’- liability act), makes the question of the assumption of risk caused by the absence of such guard one of fact. The jury and the learned trial judge seem to have correctly decided the case.

The judgment and order should be affirmed.

Present—r Hirschberg, P. J., Woodward, Jenks, Hooker and Gaynor, J J. '

Judgment and order unanimously affirmed, with costs.  