
    Mamie Stevens, an Infant over the Age of Fourteen Years, by Henry Stevens, her Guardian ad Litem, Respondent, v. Robert Gair, Appellant.
    Second Department,
    December, 1905.
    Negligence — injury to hand by Uncovered cog wheels — assumption of apparent risk by minor.
    The plaintiff, a minor sixteen years of age, was directed to gather up refuse paper from the floor. While carrying an armful of such paper her fingers were caught and injured by moving cog wheels at the side of a machine at which she had previously been at work. The cogs had no protecting cover. Plaintiff testified that she did not know whether she used care or not, but that she kfiew that if she put her fingers in the cogs they would be pulled through and injured.
    
      Reid, that a judgment for plaintiff should be reversed;
    That, having full knowledge of the danger, the fact that she was a minor did not alter the rule that employees assume a risk which is patent and incident to the employment even though the gears were not protected as required by statute.
    Rich, J., dissented.
    
      Appeal by the defendant, Robert Gair, 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 19th day of April, 1904, upon the verdict of a jury-for $1,500, and also from an order entered in said clerk’s office on the 19th day of April, 1901, denying the defendant’s motion for a new -trial made upon the minutes.
    
      Frank Verner Johnson [E. Clyde Sherwood with him on the brief], for the appellant.
    
      Henry Escher, Jr. [George F. Elliott with him on the brief], for the respondent.
   Jenks, J.:

The plaintiff, a servant, complained of a personal injury due to the negligence of the master in that he omitted to protect his machinery and permitted her to do the work without informing her that it was dangerous and without instructions as to the proper manner in which it should be done. The plaintiff, sixteen years old, was sorting paper caps or covers after they had been discharged onto a table from rollers which were on a table. Their gear wheels were two revolving cog - wheels on and -at the .side of . .the table. The usual station of the plaintiff was at a safe distance from the machinery. She testifies that on the day in question she left her post and under direction of a more, experienced fellow-servant was taking up scraps of paper from the floor and putting them in a ' refuse heap. She had stooped down and after she had gathered an armful she says that in some way or other her fingers were drawn into the cog wheels. She testifies: “I could not say whether or not when I gathered these papers up I leaned up against those cog wheels in any way. All I remember is, some paper had gone through and pulled ray fingers through ; that is all I remember.” Again she testifies: “ I got down on the floor -and gathered the two arms full. I mean by ‘two arms full,’ I took just as much, as I could carry in my two arms,, and in doing so some of the paper went through and- drew my fingers through. T gathered some of the paper up in my arms and was holding it there in my arms, and I raised myself up. I don’t just exactly know how it got caught, but some paper went through and I looked at my fingers and my fingers was all hanging; that is all I remember. It was the paper that got caught in the wheels. How my fingers got caught I don’t know myself.” In response to the question, “I want to know whether you took any care at all to keep away from the cog wheels when you were doing that ? ” she answered: “ Well, I didn’t really know the danger. I don’t know whether I did take care or not.” To counsel: “In other words, I didn’t mind whether I got close to the cog wheels or not.” “ By the court: Q. Answer the question — did you take any care of the cog wheels? A. Well, Judge, I didn’t really know the danger of them and I didn’t really take care.” It is clear, however, from other parts of her testimony- that she did know the nature and function of these cogwheels; that they were in constant motion ; that contact with them was dangerous, and that if her fingers came in contact they might be drawn into them. After marking as an exhibit the part of the machinery where her fingers were caught, she testifies: “ Those cog wheels were a part of the machine that were moving all the time. They didn’t stop. I saw that, of course, as I was working there,, on this table .by the machine. There was no guard or protection of any kind around those cog wheels. I mean by a. guard or protection a piece of covering of some kind put around the wheels. I mean by a guard or protection something that would keep my fingers away from those wheels ; because if my fingers got into the wheels they would be pulled through and injured. * .* * I knew that if I did get near enough I would get caught; if I walked up and put my haind on the wheel I would get caught. And I didn’t go near enough to have that happen.” So far as the liability for non-instruction is concerned, I think that the language of Hickey v. Taaffe (105 IST. T. '26, 37) applies: “Being of an age to appreciate, and having full knowledge of the danger, and at the same time being competent to perform the duty demanded from her, the fact that she was a minor does not alter the general rule of law upon the subject of employes taking upon themselves the risks which are patent and incident to the employment. (De Graff v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 125; Coombs v. New Bedford Cordage Co., 102 Mass. 572, at 585; Sullivan v. India Mfg. Co., 113 Mass. 396-388; King v. B. and W. R. R. Co., 9 Cush. 112.)” It is true that the plaintiff had only been working upon this machine from eight until four o’clock of one day. The question of previous experience or previous service is, of course, very frequently relevant and material as bearing on. the fact of the knowledge of the servant. But the final question is as to the knowledge of the servant at the time he entered upon the work in which he was injured. .

, In Buckley v. G. P. & R..M. Co. (113 N. Y. 540, at 544) a lad of tender years had been at work from noon Saturday until the next Tuesday at eleven a. m. His foo't slipped, and in saving himself he thrust his hands in the revolving cógs and was injured. The court, per Eael, J., say : “We think it is preposterous to say that • it was the duty of the employer to warn him not to put his fingers in between the cogs. It might as well be required to warn a boy twelve years old, who was working about boiling water or a hot fire, not to put his hand'into the water or the fire.” And again (at p. 545) : “ All the law requires is that the minor should be properly instructed as to the danger to which he is exposed, and if he is injured because he has not received such instruction, then, as a general rule, the employer may be held responsible. But where the minor is familiar with the machine, and its character and operation x are obvious, and he is aware of and fully appreciates the danger to be apprehended from. working the machine, the'fact that he is a • minor does not alter the general rule that the employe takes upon himself the risks which are patent and incident to the employment.” ■ In McCarragher v. Rogers (120 N. Y. 534), Bbadley, J., for the'" court, says: As applied to a child, that responsibility depends upon the appreciation of danger which knowledge of the condition will necessarily give. The plaintiff knew that if his foot got into the machinery it would be injured. So far his knowledge required him to be sensible to danger. This was apparent to him. ' And so' far as danger was known and obvious to him, the boy may have ■ been legally as responsible for his own protection as a full-grown person.. (Hickey v. Taaffe, 105 N. Y. 26; Buckley v. G. P. & R. M. Co., 113 id. 540.) ” In Ogley v. Miles (139 N. Y. 460), where a lad of sixteen was injured by contact with a buzz saw after two days’ employment, the court say: “ He had operated buzz saws before he did this one;.not for any length of time, but, obviously and from his own testimony, long enough to know the nature of the machine and the dangers attending its use. He was thus in the same position as to knowledge that he would have been in had the defendants imparted to him oral information of the dangerous character of á buzz saw. Within the cases decided in this court, the plaintiff should have been nonsuited. (Hickey v. Taaffe, 105 N. Y. 26; Buckley v. The Gutta Percha & Rubber Manufacturing Co., 113 id. 540, and cases cited.).” In Downey v. Sawyer (157 Mass. 418) the plaintiff was aged sixteen years, and on the afternoon of the second day of his employment his sleeve was caught in revolving gears. In Hettohen v. Chipman (87 Md. 729) the court say : “ How, the evidence shows,, and shows beyond all dispute, that the appellant fully understood the perils incident to the use of the circular saw. It is not material that these perils were not explained to him by the master. If they were not plainly visible, or if the servant had been, because of his youth, incapable of perceiving them unless explained or pointed out to him by the master, then the failure of the master to warn tlie servant would be a clear breach of duty, and, consequently, would be an' act of negligence." But the object of a warning or caution could only be to inform the servant .of the perils which, but for the warning or caution, he would be incapable of appreciating. If without such warning or caution he knows the perils just as well as though warned or cautioned, then no warning or caution is or can be required, and, if none be required, the* omission to' give it furnishes no cause of action.”

Even if the jury might properly have found that the defendant had not protected the cog wheels in' obedience to section 81 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192), the rule of Knisley v. Pratt (148 N. Y. 372) would apply.

I think that the judgment and order should be reversed and a new trial should be granted.

Bartlett and Miller, JJ., concurred; Rich, J., dissented.

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