
    Frances Clark, as Administratrix, etc., of Pearl Clark, Deceased, Appellant, v. International Paper Company, Respondent.
    Third Department,
    June 29, 1910.
    Master and servant — negligence — death of worker in paper mill —' unguarded key on shaft — cause of injury — erroneous nonsuit:— contributory negligence.
    Where in an action to recover for the death of an employee in defendant’s paper mill it appears that it was part of the decedent’s duty to replace belts on pulleys whenever they came off; that one of the belts which furnished the power to the refiner slipped seven or eight times a day;'that just beyond the hub of the piilley to which this belt was attached, a key projected about . one inch from the shaft which was about ten feet from the floor; that this key which was about three-quarters of an inch thick-was unguarded, and that the decedent while replacing this belt was somehow caught and killed, and it further appears that his clothes were stripped from him'and wound around the ■ shaft near the pulley, it is error to dismiss the complaint, for .the master, owing to the frequency with which this belt slipped, had reason to anticipate danger from the unguarded key and should have protected itl ■
    The fact that decedent’s clothes were stripped from his body and wound closely around the shaft is sufficient to authorize the jury to say that the injury was caused by the exposed key.
    Where plaintiff was not permitted to show the general practice of replacing belts while shafts were in motion, or to show that the foreman knew of such practice, and it appears that it would have been impracticable to shut off the power" each time the belt slipped and that the defendant was last seen alive with his body one and one-half feet from the piilley and his jacket buttoned, the question of his contributory negligence is for the jury.
    Appeal by the. plaintiff, Frances Clark, as administratrix, etc., ■ from a judgment of the. Supreme Court in favor of the- defendant, entered in the office of the clerk of the comity of Washington on the 22d day of January, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Washington Trial Term.
    
      C. J. Vert, for the appellant.
    
      Edward M. Angell, for the respondent.
   Smith, P. J.:

The action is brought to recover for- the death of plaintiff’s in tes-. tate, claimed to have been caused by the defendant’s negligence. The defendant was operating a paper mill. In the woodroom in said mill the main power shaft extends north and south. From this main shaft' is supplied the power that runs thirteen different machines. The main shaft is about ten feet from the floor. Punning along parallel with this main shaft is a counter shaft about the same height from the floor, which furnishes the power to what is-called the refiner. The power is transmitted from the main shaft to the counter shaft in the ordinary way by a belt and pulleys, and from the counter shaft to the-refiner by a belt and pulleys. The province of this refiner was to take knots of wood and grind them up so that the wood could be made into pulp, and from that into paper. The work was rough work, and by reason thereof the belt which connected the refiner with this counter shaft would frequently slip off the pulley as many as seven or eight times a day one witness swears.

The plaintiff’s intestate, a young man twenty-one years of age, was the oiler in this woodroom. His duties were to oil the several machines and to put the belts onto the pulleys whenever the belts would come off. He never did any oiling around the shafts or pulleys. On the afternoon of the 4th of November, 1908, the belt which connected the counter shaft with, the refiner came off from the pulley. Plaintiff’s intestate got upon an old machine which was out of use, called the splitter, which was nearly under this pulley, for the purpose of putting the belt on. While engaged in putting the belt on he was in some way caught, flung around the shaft and to the floor and killed. He had on trousers, a-shirt and a jacket. .These were all stripped from him, and were found tightly wound around one side of the shaft near to the pulley. On that side of the shaft there was what.is called a key. It seems that in. the shaft itself is .a little groove, as well as in the hub of -the pulley.. This key passes into the groove both in the pulley and in the shaft, and thereby makes firm the pulley to the shaft. This key is about three-fourths of an inch in thickness, and about square at the •end where it was turned up, so that it could be driven out'from the pulley. Just beyond the hub' of the pulley, therefore, it projected up from the shaft about one inch, revolving of course with the shaft and pulley. This key thus projecting up" was in no way guarded, and the failure to guard the same is claimed to be the negligence which makes the defendant responsible for the death of plaintiff’s intestate. I can see no greater danger in a set screw than in a projecting key. They both project far enough from the shaft to catch the clothing of one working around, and to render dangerous any occupation which calls for action in the vicinity of the set screw or key. It is true that this was in a shaft ten feet from the floor, but the frequency with which this belt came off from the pulley was such that the master had reason to anticipate that danger might come from the exposed condition of the key, and it cannot be said that reasonable care would not have required him to guard the same.

Mor can it be said that the plaintiff lias not given any evidence which would authorize the jury to find that this unguarded key .caused the death of plaintiff’s intestate. It is true that he might have caught his hand between the pulley and the belt and have been drawn around. If that had.been the cause of the accident it is difficult to see why all his clothing should have been stripped from him and wound so closely around the shaft. That fact of itself would seem to me to be sufficient to authorize the jury to say that the in jury was caused by the exposed key, and not by thé negligence of the intestate in permitting his hand to get between the pulley and the belt.

Mor can it be said as a matter of law that plaintiff’s intestate was guilty of contributory negligence. The evidence is to. the effect that at times the belt was put on when the machinery was in motion,' and at. times when the machinery was still. Plaintiff was not allowed to show the general practice, or that such course was pursued to the knowledge of and at the command of the foreman. Mor was she allowed' to show that it was impracticable to put the belt on when the machinery was not in motion. ’ Moreover, there were thirteen machines operated by one central shaft. To shut off the power so as to adjust any belt which might come off would require the suspension of the work of these thirteen machines. Plaintiff should, therefore, have been allowed to show that it was not the custom to shut off the power to put on a belt. It is true that this belt was on a counter shaft} and by running off the belt on one pulley this shaft could have been stopped; but to put back the belt thus run off to connect the counter shaft with the main shaft thereafter would present the same dilemma, whether to put the belt on while the shaft was in motion,, or to stop the work of the other twelve machines while this was being put on. There is evidence to the effect that just before the accident he was seen to be fixing the belt with his body about a foot or a foot and a half away from the pulley and his jacket buttoned. He was not thereafter seen before his death. We are of opinion that this evidence requires the submission to the jury of the question of the contributory negligence of plaintiff’s intestate as well as the question of the defendant’s negligence in causing the injury. (Irish v. Union Bag & Paper Co., 103 App. Div. 45; affd., 183 N. Y. 508.)

The-judgment should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event;-

All concurred.

Judgment reversed and new filial granted, with costs to appellant to'abide event.  