
    Wolf Wistinetz, Respondent, v. Jacob Goldman and David Parkin, Appellants.
    Second Department,
    January 17, 1913.
    Master and servant — negligence — injury by planing machine — common-law action — assumption of risk —failure of foreman to furnish assistant-^-burden of proof—detail of work.
    Under the rule of the common law a servant who continues to operate a machine'for planing lumber without protest or objection, knowing that his master has removed a device which stopped the movement of the cutting knives while lumber was being clamped to the table, assumes the risk of injury.
    Where a servant using such planing machine asked his foreman to furnish a helper owing to the fact that the lumber was too long for him to handle alone, and the foreman'told him to continue working and that he would furnish a helper,' the master is not liable for injuries received by the servant whose hand "was drawn against the planing knives until the foreman had had a reasonable time within which to furnish a helper.
    
      A servant suing to recover for injuries so caused is under the burden of showing that a helper promised by the foreman was not available, if he asserts that fact, for in the absence of evidence to the contrary, it is presumed that a sufficient number of competent fellow-servants were employed:
    The action being at common law the failure of the foreman to furnish a helper was a detail of the work for which the master is not liable.
    Appeal by the defendants, Jacob Goldman and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the. county of Kings on the 27th day of April, 1912, upon the verdict' of a jury for $1,500, and also from an order entered in said clerk’s office on the 9th day of May, 1912, denying the defendants’ motion for a new trial made upon the minutes.
    
      Edward M. Grout [Charles B. La Voe, James I. Cuff and Paul Ghrout with him on the brief], for the appellants. .
    
      Henry M. Later [Jay S. Jones and Louis Pleshet with, him on the brief], for the respondent.
   Rich, J.:

This action is brought by the plaintiff, an employee, against the employer to recover on the common law for personal injuries. This appeal is from a judgment in favor of the plaintiff, and from an order denying defendants’ motion for a new trial.

The plaintiff had been in defendants’ employ some years before the accident, and during the time of his employment had operated a machine used for cutting lumber. At one time the machine was equipped with a stopping, device by which the motion' of the chain to which the cutting knives were attached could be suspended, and it was the practice to suspend the operation of the knives while the lumber was being clamped to the table preparatory to cutting. This, device had been removed by defendant some time before the accident, because it interfered with the rapidity with which the work could be accomplished. The plaintiff, without protest or objection, continued to operate the machine, and in doing this he assumed the risk of injury.

From the time the plaintiff commenced operating this machine to the morning of the accident, the lumber he was engaged in cutting was cypress boards not exceeding four or five feet in length, which he was able to handle without assistance and without danger.. On the morning of the accident, and just prior to its happening, plaintiff called the attention of the foreman in charge to the fact that the lumber to be worked that day was twelve feet long, and told him that because of its length it was impossible for him to handle it alone, to which plaintiff says the foreman replied, “You go ahead, I will send you another man here. ” A witness called by plaintiff testified that the foreman said in reply to the request, “Told me to wait awhile, (I will send you one.’ ” On his cross-examination this witness testified that it was said, “ I will give you a man right away; work along.” The plaintiff seems to have proceeded with the work without waiting for a helper, and while engaged in planing one of these long boards it turned over, drawing plaintiff’s hand into contact with the knives, and inflicting the injury for which he has recovered.

The negligence upon which plaintiff relies is the failure of the foreman to furnish him with a helper as promised. The time is not definitely given, but the accident occurred within an hour after the alleged promise was made. It does not appear whether sufficient time had elasped after the promise and before the accident to have enabled the foreman to provide the services of a helper. It is not shown that any appreciable time elapsed after the request to the foreman and before the accident. Ho liability was created by the failure to provide a helper until a reasonable time had elapsed within which the foreman could give the necessary direction. The defendants’ duty to the plaintiff was to furnish him a safe place in which to work, reasonably safe tools to work with and a sufficient number of efficient fellow-workmen to safely perform the work required of him; the questions of a safe place and the efficiency of plaintiff’s coemployees are not in this case.

It is contended on the part of appellants that there was a sufficient number of 'coemployees in the factory at the time to have assisted the plaintiff, and that the failure of the superintendent to assign one to this duty was negligence of a fellow-

workman in the performance of "a detail of the work. It is pointed out, however, by respondent that there is no evidence of the presence and availability of other employees except such as may be implied from the promise of the foreman. The burden of showing an omission of duty in this respect, if- there was any, was upon the plaintiff, and in the absence of evidence to the contrary the presumption is that competent and sufficient Servants were employed. (Potter v. N. Y. C. & H. R. R. R.. Co., 136 N. Y. 77, 81.) Plaintiff was capable of doing the work without the aid of a helper so long as the boards were of the length that he had handled before the accident;, it was only when the length of the boards was increased that the use of the machine by one person without an assistant became dangerous. That was aidetail of the work for which the foreman was solely responsible. (Dair v. N. Y. & P. R. Steamship Co., 204 N. Y. 341, 350; Cullen v. Norton, 126 id. 1; Loughlin v. State of New York, 105 id. 159; Besel v. N Y. C. & H. R. R. R. Co., 70 id. 171; Madigan v. Oceanic Steam Nav. Co., 178 id. 242; Vogel v. American Bridge Co., 180 id. 373.)

It seems from the evidence that, if there was negligence in the failure to provide an. assistant,, it was that of a fellow-servant' with regard to a detail of the work, and it follows that the judgment must be reversed on the law and facts.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., and Woodward, J.,, concurred; Hirsohberq and Burr, JJ., dissented.

Judgment and order reversed and new trial granted, costs to abide the event, . .  