
    James Dyer, Respondent, v. John L. Radermacher, . Appellant.
    Second Department,
    November 10, 1911.
    Master and servant—negligence-—injury by cutting machine — evidence.
    It is unnecessary for a master to instruct a servant as to the use of a dangerous machine where the exercise of ordinary intelligence and reasonable observation would convey to the servant all the knowledge as to existing dangers and the probable injuries to be apprehended therefrom which instruction would impart.
    Where a servant was instructed never to put his hand in á machine until he had shut off the power, he is not entitled to recover for injuries caused ' by a disregard of the instructions.
    Evidence in a common-law action by a servant against his master to recover for the loss of a hand, caused by a cutting machine on which he wasworking, examined, aiidTield, that ajudgmentfor the plaintiff should be reversed and a new trial granted. "
    Hirschberú, J., dissented.
    Appeal by the defendant, John L. Radermaoher, from a judgment' of the Supreme Gotirt in favor of the plaintiff, enteréd in the office of the clerk of the county of Kings.on the 11th day of July, 1910, upon the verdict of a jury for $6,320, as' amended by an order entered in said clerk’s office on the 27th day of July, 1910, and -also from an order entered on the 11th day of July, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      William A. Jones, Jr., for the appellant.
    
      John F. McIntyre [M. Spencer Bevins and Jacob C. Brand with him on the brief], for the respondent.
   Burr, J.:

This is a common-law action of servant against master. In his verified complaint plaintiff asserts the violation of almost every recognized duty of the latter toward the former. Upon the trial not the slightest effort was made to sustain any of the allegations made under the sanctity of an oath, except the failure to instruct in the use of a dangerous machine, the danger of which was not apparent. Instruction is unnecessary when the exercise of ordinary intelligence and reasonable observation would convey to the servant all óf the knowledge as to existing dangers and the probable injuries resulting therefrom which instruction would impart. Plaintiff was a mature man. For several weeks prior to the date of his injury he had been employed for the greater portion of the time in operating the machine upon which he was injured. He himself describes it as a “ cutting machine.” He needed not .to be told that if he placed his hand against the knives he would be Kurt. Defendant was engaged, among other things, in renovating hair mattresses. It was plaintiff’s duty to rip these old mattresses, take from the ticking the matted hah which was dirty and frequently full of hard “clakes” or “Jumps” and then feed it into the machine. The front of the machine in which the material was placed was in the main room, and the back part of the machine, out of which the material came, was in another and smaller room, there being a partition about the center of the machine. After being placed in the machine the material passed between rollers upon which were knives or teeth which tore it apart, and then by air - pressure the hair and dirt and dust were blown out of an opening in the back part of the machine intp the smaller room. This opening was about three feet long by a foot and a half wide. To quote from plaintiff’s -.testimony, if a mattress had not “been cleaned for some years it would come out in lumps, it would force itself out through the rollers; * * * it would come in lumps as big'as your fist, force itself underneath the rollers and then it wouldn’t get blown out, * * * it would lay in the back of the machined” He further testified that he was instructed under such circumstances to put his hand into this opening and take out the material which had accumulated, He admitted, however, that he was also instructed to shut off the power from the machine and to stop it before going around into the rear room to remove these lumps which had not been broken while passing through the rollers. Upon the day in question he left, the front of the machine, went into the rear room, thrust his hand into the opening while the machine was running, it was caught between the teeth of the rollers and taken off between the wrist and the elbow joint. Plaintiff claims that he did not know that any portion of the machinery which tore.and pulled apart this matted hair was in proximity to the place where he put his hand, and that he could not see the teeth upon the rollers which’ inflicted the injury. In view of the testimony furnished by the photographs of the machine, and that of numerous witnesses- called .by the defendant, some of them wholly disinterested, these statements are incredible, and this was the view taken by this court upon the former appeal. (Dyer v. Radermacher, 136 App. Div. 688.) Plaintiff now claims that the light was obscured by dirt upon the window panes, and by the dust and dirt flying about the - rear room. But he testified that he waited in the back room for the dust to settle, although, when- he approached the machine, “it didn’t all quite settle down.” But he saw distinctly the lumps of hair in’ the opening of this machine before he put his hand in, and if he could see dark objects like these, it is quite incredible that he could not • see the brighter and more glistening steel teeth in the immediate proximity. But if we should accept plaintiff’s testimony as true, he is not entitled to recover. His instructions were to shut off the power from the machine and to stop it before leaving it in order to.enter the rear room and attempt, to remove the clotted’ material which had not been blown out of the machine. This was not an idle ceremony. Some purpose was to he subserved by it. Manifestly it was to avoid danger. If it be true, as he claims, that the foreman told him that there was no danger in putting his hand into the opening, that statement must be construed in connection with the instruction conceded to have been given to him, to stop the machine before doing so. Plaintiff claims that he did shut off the power on this occasion. As to this there is a sharp conflict of evidence. But he admits that he knew that the machine would run for a minute or two after the belt was thrown off, and that when he thrust his hand into the hole he did not know whether it had stopped or not. The happening of the accident demonstrates' that it had not. The court correctly charged the jury that if the plaintiff, in disregard of the foreman’s instructions to stop the machine before going into the rear room, did go in and put his hand into the moving machine, where these rollers were, without waiting for the machine to come to rest, which he should have done, he was guilty of contributory negligence.” As there is no conflict of evidence that he did that very thing, plaintiff’s complaint should have been dismissed.

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

Jenks, P. J., Woodward and Rich, JJ., concurred; Hirschberg, J., dissented.

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