
    Frank M. Gordon, App’lt, v. The Reynolds Card Manufacturing Co, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 23, 1888.)
    
    1. Negligence—When action for maintainable.
    The absence of means to stop the machinery is not a fact which would maintain an action for an injury not appearing to be assignable to that cause.. To maintain such an action,the accident must appear to be attributable solely to the omission to supply the additional machinery. It must be caused by. that omission
    3. Same—Master and servant—Duty op master.
    An employer is not bound to the persons in his employ to furnish the best description of machinery to protect them from the risks of accidents in carrying on his business.
    8. Same—Cause op action.
    The plaintiff while employed in passing sheets of paper between two revolving rollers, had his hand drawn in between said rollers and severely injured. The negligence alleged was the absence of an apparatus by which the rollers could be stopped. It appeared that the omission to supply this apparatus was not the cause of the' injury received by plaintiff. ' Held, that the complaint was properly dismissed.
    
      Appeal from a judgment recovered on the dismissal of the plaintiffs complaint at the circuit.
    
      C. Bainbridge Smith, for app’lt; Lewis H. Hyde, for resp’t.
   Daniels, J.

The plaintiff entered into the employment of the defendant in the early part of November, 1883, and he continued in its service until the 8th of February, 1884. On that day he was engaged in passing paper sheets between two rollers revolving in different directions, and by which the sheets, which were between zinc plates, wei’e drawn through and between the rollers. In feeding the rollers in this manner one of his hands was drawn in between them and very severely bruised and injured, his little finger being so far detached as to be left hanging by the skin, and three bones in the palm of the hand were broken. He was put at work at the rollers about the middle of January, 1884.

Two persons were required to carry on this part of the work, one engaged in front supplying the material to the rollers, and the other in the rear, taking it from them as the material was passed through. The plaintiff was assigned to duty at the rear of the rollers, where no danger existed of such an accident as was encountered by him. But the work in front of the rollers was the most laborious, and he changed places with the person who was there employed. This he did without any direction on the part of the defendant, or any person having control over his services. At the time the injury was received he was of the age of eighteen years, and capable of understanding, from the observations which would naturally be made by him, the risks and dangers of the employment. But it was insisted, at the trial, that the defendant was liable for the consequences of the injury because of its omission to supply the means of immediately shifting the belt propelling the rollers, the only way in which that could be done being by the use of a stick to pry off the driving belt. Evidence was given, in the progress of the trial, estabhshing the fact that an apparatus was frequently, if not usually, supplied in the use of such rollers, by which the belt could be readily thrown off, and the rollers brought to a stand. And still other proof was offered concerning the same fact, and the readiness with which the machinery could, in this manner, be stopped, which was rejected by the court.

But the omission to supply this apparatus for shifting or removing the belting was not the cause of the injury received by the plaintiff. If it had been supplied it would have in no manner prevented the injury which he received, Tor no period of time intervened between the commencement and the full consummation of the injury, in which he could have made use of such an apparatus to stop the movement of the rollers. That was arrested by his hand passing in between them, and no determinate period of time intervened between the commencement and the completion of this injury.

The effect of such an omission was considered in Grizzle v. Frost (3 Foster & Finn, 622), where it was held that, the absence of means to 'stop the machinery was not a fact which would maintain an action for an injury not appearing to be assignable to that cause. To maintain such an action, the accident should appear to be attributable solely to the omission to supply the additional machinery. It should be caused by that omission. But it was not so caused, but it arose out of the fact that the plaintiff, in the performance of his services, brought his hand too near the surface of the rollers.

He was not of such an immature age as to render the defendant liable for omitting to explain to him the dangers or risks of his employment. The case in this respect is materially different from that of Coombs v. New Bedford Cordage Co. (102 Mass. 572), where the plaintiff was a boy of fourteen years of age. The experience and superiority of judgment acquired by the plaintiff within the additional four years through which he had passed, would be sufficient to apprise him of the necessity of avoiding contact with the rollers in the rendition of his services. The danger was obvious and apparent, clearly observable and capable of being understood by a person of his age, and it required no admonition from the employer to inform him of its existence. It was one of the risks of the employment readily observable and understood by the plaintiff, and must be held to have been assumed by him in entering into this service.

The case of Hickey v. Taaffe (105 N. Y., 26; 6 N. Y. State Rep., 426), in its leading facts strikingly resembles the one now under consideration, except there the person similarly injured was of the age of only fourteen years and seven months. And it was held by the court that the defendant was not liable for the injury which she had received. And in the case of Sweeney v. Berlin etc., Envelope Co. (101 N. Y., 520), the court held that the defendant was not bound to the persons in its employment to furnish the best description of machinery to protect them from the risks of accidents in carrying on its business. And that of Benzing v. Steinway (101 N. Y., 547), sanctions the adoption of no different legal principle. There was no ground disclosed by the evidence given upon the trial which would have justified the court in submitting this case to the decision of the jury, but under the circumstances which were proved, it was its duty to dismiss the complaint, and the judgment should be affirmed. Van Brunt, P. J., and Brady, J., concur.  