
    Antonio Di Pietro, as Administrator, etc., of Domenico Di Pietro, Deceased, Respondent, v. The Empire Portland Cement Company, Appellant.
    
      Negligence—injury to an employee who, outside of his duty, volunteers to assist other employees and goes upon a scaffold near a cogwheel in plain sight and is crushed thereby.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that, while two workmen in the defendant’s cement mill were engaged in removing belts from a broken shaft, the intestate, who was employed in another, department of the mill where his duties were not at all dangerous, volunteered to assist them. Thirteen feet above the floor of the mill was a scaffolding, consisting of two planks, one ten inches wide and the other twelve inches wide, the twelve-inch plank being placed on top, These planks extended close to some shafting and some unguarded cogwheels. This scaffold was not designed for employees to stand upon while removing the belts for which purpose the defendant had provided ladders. During the progress of the work the intestate got upon the scaffold and remained there notwithstanding the fact that the room was light enough to enable him to see the proximity of the shafting and cogwheels and that he was notified by his companions that the scaffolding was a dangerous place. After the work of removing the belts was completed it was discovered that the intestate had been crushed to death beneath the cogwheels. No one saw just how the accident occurred or what was the cause thereof.
    
      Held, that the danger of working upon the scaffold while the machinery was in motion was obvious to the intestate and that he assumed the risk incident thereto, and that a judgment entered upon a verdict in favor of the plaintiff should be reversed.
    Appeal by the defendant, The Empire Portland Cement Company, 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 26th day of April, 1901, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 24tli day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      James Devine, for the appellant.
    
      B. J. Shove and Lamont Stilwell, for the respondent.
   Davy, J.:

Plaintiff’s intestate, a married man, about thirty years of age, was killed at defendant’s mill in the village of Warners, Onondaga county, N. Y., about three o’clock in the afternoon of December 23, Í899, by falling upon unguarded cogwheels, into which he was drawn and killed. The question was whether the accident was the ¡result of negligence on the part of the defendant. The jury found that it was, and the inquiry here is, whether the proofs in the case sustain the finding.

The plaintiff’s contention is that the accident was the result of negligence on the part of the defendant in not erecting and maintaining a proper scaffolding for the deceased to work upon. The scaffolding, which was thirteen and a half feet-above the floor, consisted of two planks, the one ten and the other twelve inches wide. The wider plank rested on top of the other. These planks extended along next to the machinery and rested on cleats made of inch boards about twelve inches wide, and were not nailed or fastened to the cleats. It was claimed by some of the plaintiff’s witnesses that they were loose and wobbled.

During the afternoon of December twenty-third a shaft broke in the mill, and the assistant superintendent, who had charge of the men and machinery, instructed Flynn and James Sandy, who were employees of the defendant, to run off the belts in what was called the Ball mills room and to hang them up. Sandy took a stick, and while in the act of throwing them off, the deceased, who had been in the employ of the defendant for two years as a common laborer and who was at that time operating the hopper in the kiln room on the floor above, came down and tendered his services, but Sandy informed him that he could throw them off alone and requested him to get a piece of rope to tie them up. When the deceased returned with the rope Sandy told him that he did not need it; that he had found some lacings and would use them in tieing up the belts. At this time, the deceased went upon the plank or scaffolding next to belt No. 2 and was passing by the flywheel, when Sandy, who stood upon the ladder, called to him to get off the plank, that it was a dangerous place, but he shrugged his shoulders and said, ■“ I don’t believe.” He was also told by his companion, Antonio Di Pietro, not'to go upon the scaffolding, as it was dangerous, but he remained there, notwithstanding this warning, When the belts were adjusted Sandy- and Di Pietro started to go down stairs, and after they had gone a short distance Di Pietro looked back and-saw the deceased was between the cogwheels. ' It appears that this scaffolding was constructed at a time when some repairs were made to the machinery and a shaft was put in the mill, and it had remained there ever since. It was intended to be. used only in repairing the machinery. The defendant had furnished three ladders for the employees to use in oiling the machinery and removing the belts from the pulleys and tieing them up, so there was no occasion for using the scaffolding for doing the work referred to.

The case was tried upon the theory that if the scaffolding had been properly built this accident would not have happened. It must be remembered that the scaffolding was not constructed for the «employees to stand upon in removing thé belts from the pulleys, or to use for any purpose while the machinery was in motion.

The accident occurred in the daytime, the room was also lighted by electricity, and while there was some dust, it was not enough to prevent the deceased from seeing the movements of the machinery. The shafting and cogwheels were so close to the platform upon which the deceased stood that he could plainly see it was a dangerous place. He had been assigned by the master to another department where his dirties were not in any sense dangerous, and had he remained there he would not have-been killed. It was only when he volunteered to do work more hazardous and not assigned to him that the accident occurred. When he went upon this platform, the danger of the situation was as obvious to him as it was to the other employees, and after he was notified of the danger he was either negligent or indifferent as to the consequences.

In Shearman & Redfield on Negligence (5th ed.), section 207, the authors say: “ The servant cannot recover for an injury, which he would not have suffered if he had not voluntarily left his post of duty to take a position of greater danger, even though his act may be well-meant and his object to continue serving' his' master.”

In McGovern v. C. V. R. R. Co. (123 N. Y. 287) the court says': “ If the servant puts himself in the way of dangerous machinery, with knowledge of its character, or places himself in the way of bodies moving in their accustomed orbit with irresistible force, and is thereby injured, it will generally be regarded as the result of his own carelessness.”

In Maltbie v. Belden (167 N. Y. 312) the court held that “ A servant assumes not only the risks incident to his employment, but all dangers which.are obvious and apparent, and so, if he voluntarily enters into, or continues in the service, having knowledge, or the means of knowing, the dangers involved, he is deemed to assume the risks and to waive any claim for damages against the master in case of personal injury.” (Crown v. Orr, 140 N. Y. 452.)

It is also claimed that the defendant was negligent in not placing guards around the machinery. The deceased knew from observation that there were no guards; he also knew the dangers to be apprehended from the movements of the machinery, and, having knowledge of these facts, lie assumed the risks. (Knisley v. Pratt, 148 N. Y. 372.)

The immediate cause of the death of the intestate was his being crushed between the cogwheels. No one saw just- how the accident occurred. Whether the platform wobbled or he stubbed his toe, or slipped, or became dizzy and fell, or whether his clothes were caught in the machinery, no one knows. That is purely a matter of speculation.

It is a well-settled rule of law that in an action for damages based on negligence of the defendant, the absence of negligence con tribu t. ing to the injury must be clearly shown by the plaintiff, either by direct proof or by circumstantial evidence.

We are of the opinion that the application of well-settled principles of law to the facts and circumstances in this case requires a reversal of the judgment.

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

■McLennan, Spring, Williams and Hiscook, JJ., concurred.

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