
    Anthony Smith, an Infant, by James Somerville, His Guardian ad Litem, Respondent, v. The F. Wesel Manufacturing Company, Appellant.
    Second Department,
    March 1, 1907.
    Negligence — injury by planing machine—when danger not obvious.
    the danger of injury from the exposed cutting edges of the shaft of a planing. machine which revolved, in an open space between- covered rollers, só rapidly as to look like a smooth roller, is not obvious to a boy of nineteen years-of age, who has only, worked at the machine for two hours, and a recovery for injuries sustained is warranted, where he was directed to remove shavings collecting near the shaft without instructions. ,*
    
      Under such circumstances, the fact that the plaintiff removed the shavings with his hand instead of with a stick is not contributory negligence as a matter of law.
    Appeal by the defendant, The F. Wesel Manufacturing Company, 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 11th day of May, 1906, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 14th day of May, 1906, denying the defendant’s motion for a new.trial made upon the minutes.
    
      John A. Straley for the appellant.
    
      William J. 'McArthur [.Richard A. Rendich witli him on the brief], for the respondent.
   Gaynor, J.:

Assuming that the machine is correctly described in the opinion in Crown v. Orr (140 N. Y. 450), that case was not like this one. There the plaintiff was injured by having his hand caught in the revolving knives of the' planing machine while he was replacing the hood on the top of the machine which covered the knives. The hood being off, the knives were fully exposed, and the danger of them obvious. Here the sets of rollers which are in front of and in the rear of the knives, and which draw the boards through, are covered by a front and a rear flap, both of which rise or open on hinges to expose the rollers in order to clean or care for them. They are down when the machine is iii operation, but there is an open space between them about 4 or 5 inches wide extending across the top or table of the machine. This opening exposes a revolving shaft which also extends across the table, and is flush with the said flaps. It is about 4 inches wide and two inches thick, and its sharp metal"edges shave the boards as they pass underneath it. It has no knives, but only these sharp edges, and in its swift revolution "of about 3,000 a minute it looks like a smooth roller. It "throws the shavings out to the rear through the said open space, and they keep accumulating, more or less, at the opening. The plaintiff was brushing them away with his hand on direction of the man whom he was assisting • when it was caught by the revolving shaft and taken off. The learned trial judge charged that if the danger was obvious the plaintiff could not recover, but if not that he should, have been instructed of it. It is not altogether .plain that the danger", was obvious to a boy of nineteen, which the plaintiff was, who had only worked at the machine two hours, and who .was removing, the shavings for the first time.. The ¡jury did not think it was after hearing the evidence and" inspecting the machine, which was also exhibited to us. That he used his hand instead of a stick was not negligence as matter of law for'the same reason. ’

The judgment should be affirmed.

Present — Jenks, Hooker, G-aynob, Rich and Miller^ JJ.

Judgment and order unanimously affirmed, with costs.  