
    Norman E. Radley, an Infant, by John L. Radley, His Guardian ad Litem, Respondent, v. Samuel Shopiro, Appellant.
    Fourth Department,
    July 12, 1906.
    Negligence — injury to employee by belt used on sewing machine — judgment for plaintiff reversed.
    The plaintiff, employed for some time in runing a buttonhole machine, after splicing the driving belt under the machine, was struck in the eye and injured by the end of the belt which broke after the repair. The plaintiff was familiar with the method of splicing the belt, and there was no special risk except the remote chance of being struck in the eye if the belt broke, which risk was • apparent without instructions.
    
      Held, that it was not incumbent on the master to give instructions as to such self-evident risk, and that a verdict founded on his negligence in that respect was unwarranted.
    McLennan, P. J., dissented, with opinion.
    Appeal by tlie defendant, Samuel Shopiro, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 6th day of January, 1906, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 17th day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frank Gibbons and Harry A. Talbot, for the appellant.
    
      Thomas H. Ward, for the respondent.
   Spring, J.:

The defendant in 1905 carried on a tailoring establishment in the city of Syracuse. The plaintiff, a young man seventeen years of age, was in his employ, and had been for about three weeks .at this time and several months during a prior service. He had been at work on a patent button machine. On the 7th of March, 1905, he was directed by the foreman to fix bélts upon the sewing machines, of which there were about 100 in the shop. Each sewing machine was like the usual house sewing machine, except larger. It was on a table which was twenty-seven inches from the floor. About ten inches above the floor and underneath the center of the table Was . the main shaft, on which there was a small wheel. Above this was a sub-shaft called a transmitter, and by means of a pulley was connected with the wheel on the main shaft by a belt for the purpose of increasing the speed of the machine. From this upper or secondary pulley was another belt passing upward to the machinery which ran the needle of the machine. The main belt connecting the two pulleys or wheels was circular, five-sixteenths of an inch in diameter, about five feet in length, running in a groove on each wheel, and the two ends were fastened by a hook. The wheel on ■the main shaft- made about 375 revolutions a minute, and was propelled by steam.

The belt came off one of the machines, and the plaintiff put it on again, but the hook or fastener broke. The plaintiff cut off a piece from the belt, fastened the end with another hook and replaced the belt when the hook broke again, the end of the belt containing the fastener striking him in the eye, destroying it. The plaintiff in fixing the belt was obliged to stoop under the table, and he claims the defendant was negligent .in failing to warn him of the danger and give him instructions. He seems to have known how to make the fastening, for he obtained the belt and the hooks from the supply room, got under the table, cut off one end of the belt, put in another hook, made the splicing and performed the work in the customary way.

The court charged the jury, therefore, that negligence could not be founded on the failure to give instructions, for the plaintiff was familiar with the manner of doing the work and did it properly.

The court, however, instructed the jury that if they found that the fastening and putting on of the belts involved work which was especially dangerous,” and the plaintiff was unaware of the special risk, they might find that it was incumbent on the defendant to inform the plaintiff of these risks

We think the work assigned to the plaintiff does not come within the definition of a specially dangerous risk. There is inevitably risk connected with the operation of rapidly revolving shafting and accidents are unavoidable. There was no concealed danger in the putting on or splicing the ends of this belt. The plaintiff knew just how to do it, and it was patent that if the belt separated or. this wheel, moving with the velocity of SYS revolutions a minute, it would fly off with considerable force. We cannot comprehend what information the defendant could have given to the plaintiff beyond that already possessed. He was necessarily under the table in a small space and with his face close to the main wheel and the belt. If the hook came apart no one could forecast precisely the course of the end of the belt, and no amount of training would give one sufficient dexterity to escape it. The position the plaintiff was in when hit might at another time be the place of safety, so no instruction and no experience would be serviceable in view of this uncertainty. On the present occasion the end of the belt unfortunately happened to strike the plaintiff in the eye and caused the injury, and that precise accident apparently had never occurred in this shop, and obviously was unusual and could not have been anticipated.

There was no defect in the machine or its appliances, and if the defendant had warned the plaintiff that if the hook came out the , belt would fly off, no information would have been imparted for that result was palpable and inevitable. The master is not called upon to inform the employee of a self-evident fact. (Moran v. Mulligan, 110 App. Div. 208.)

"We think negligence should not be chargeable to the defendant and that a new trial should be granted.

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

All concurred, except McLenstah, P. J., who dissented in an opinion.

McLennan, P. J. (dissenting):

It seems to me that the dangers incident to the work which the plaintiff was required to perform were of such a character as required the defendant in the exercise of due care and prudence to have given warning of the same. It is true, as suggested in the prevailing opinion, that to come in close proximity to a revolving shaft is dangerous; that the danger was obvious and that no warning of the master could have emphasized that fact. The plaintiff, however, was charged with the duty of manipulating an appliance upon such shaft, the danger of which act-did not at all depend upon the revolutions of the shaft but upon the result which might be expected to follow an attempt to place a belt thereon. The defendant knew, or ought to have known, as the evidence discloses, that when it was attempted to place a belt upon such revolving shaft in such manner as to connect it with the shaft or pulley below, also revolving, that it and the hook or fastening with which it was connected was liable to fly. The plaintiff had no knowledge of and was not warned of such danger. He, therefore, assumed to put the belt upon the shaft wholly unmindful that accident could result to him therefrom. I think it is no answer to the proposition to say that the only manner in which the plaintiff could have adjusted the belt was such as to subjeet him to the chances of such accident as happened to him. If he had been informed by the master that the work was dangerous and was such as to require caution upon his part he might have used extraordinary means to have avoided the accident, or he might have refused to attempt the performance of the duty required of him.

The plaintiff in this case was wholly inexperienced. Upon the occasion in question he was .sent for the first time to replace or adjust a belt. The defendant and every man of experience connected with him knew, or in the exercise of ordinary care and prudence ought to have known, that danger attended the operation of placing a belt upon the revolving shaft or pulley. The plaintiff, without such experience and without being warned of such danger, obeying the command of the defendant, made the attempt, with the result that he lost an eye.

I think that under the plainest proposition of law as enunciate^ by the courts of this State, the defendant was guilty of actio nab!< negligence in not having informed the plaintiff of the danger in© dent to the work required before directing him to perform the sam? and that the evidence fully establishes freedom from contributor, negligence on the part of the plaintiff.

I think the evidence clearly establishes negligence on the part of the defendant; that .the plaintiff was free from contributory negligence and that under the circumstances he did not assume the risk which resulted in accident to him.

I, therefore, vote for an affirmance of the judgment, with costs.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law oi.^y, the facts having been examined and no error found therein.  