
    Joseph Monzi, an Infant, by Luigi Larocca, his Guardian ad Litem, Appellant, v. Louisa C. Friedline and Samuel A. Friedline, Respondents.
    
      Negligence — employee injured while greasing the moving cable of an elevator— acceptance of obvious risk—waiver of the protection of the Factory Act.
    
    An employee, about seventeen years of age, of the owners of a building in which an elevator was located, which he was engaged in operating, after he had been at work but a few hours, was directed to grease the cable by which the elevator was run, which he did by pulling the elevator to the top of the shaft and then starting it downward, and applying the grease with his hand to the cable above a wheel towards the rim of which the cable was moving, in which his hand was caught and injured.
    
      Held, that as the risk of greasing the cable while in motion was obvious, the employee, in attempting to do the work in that way, assumed the risk incident thereto;
    That, by entering upon the employment, with full knowledge of all the facts, the employee, under the circumstances of this case, waived the protection afforded by section 8 of chapter 409 of the Laws of 1886, as amended by chapter 673 of the Laws of 1892, providing that “ no person under eighteen years' of age * * * shall be allowed to clean machinery while in motion.”
    Appeal by the plaintiff, Joseph Monzi, an infant, by Luigi Larocca, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Yew York on the 12tli day of January, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Yew York Trial Term.
    
      
      Charles Strauss, for the appellant.
    
      Daniel P. Mahony, for the respondents.
   McLaughlin, J.:

On the 25th of November,, 1896, the plaintiff, an employee of the defendants, sustained a personal injury, and he instituted this action to recover damages therefor upon the ground that the same was caused solely by reason of the defendants’ negligence.

Upon the trial the plaintiff’s evidence tended to show that the defendants, at the time of the accident, were the owners or in possession of a building in which was located an elevator,, and which the plaintiff, then about seventeen years of age, was engaged in operating. He had been at work but a few hours when he was directed to grease the cable by which the elevator was run, and in attempting to do so, his fingers were caught between the cable and a revolving wheel and injured to such an extent that thereafter amputation became necessary. The plaintiff, in describing the manner in which the accident occurred, stated that he pulled the elevator to the top of the shaft and then started it downward, and as-it descended he commenced to grease the cable. He testified: “ When I touched the cable with my hand, my hand was above the top of the wheel; the' cable Was moving down towards the rim of the wheel; I.. had the grease in my hand and. I was greasing, and I don’t know how it was I seen my hand caught in the wheel; I saw. the wheel and knew the cable was moving. * * * This cable runs, continuously right around the wheel up and down; I think if you grease one part of that cable the grease will extend to the other part. * * * I was not obliged to put the grease on right up to the rim of the wheel.” Only two other witnesses were sworn; one, the physician, as tó the extent of the injuries, and- the other as to the instructions given, by the direction of the defendants, to plaintiff prior to his entering into defendants’ service. . At the close of plaintiff’s testimony the complaint was dismissed, and this ruling of the learned trial justice presents the only question for review. It is insisted on. the part of the plaintiff that the court erred in dismissing the complaint because the evidence tended to establish defendants’ negligence in that they did not give to the plaintiff sufficient instructions as to the proper method of performing his work, and also because they permitted the plaintiff, in violation of section 8 of chapter 673 of the Laws of 1892, amending section 8, chapter 409, Laws of 1886, to grease the cable while in motion. We are unable to see any force in either suggestion. Indeed, it is difficult to see upon what principle of law it could be supposed that the defendants could be held liable to compensate plaintiff for the injuries received by him under the facts set out in the record béfore us. He was, as we have seen, at the time seventeen years of age, and, so far as appears, of ordinary intelligence. He saw the revolving wheel and moving cable, and it was not necessary to instruct or tell him that if he put his hand between the moving cable and the revolving wheel he would be injured. It could be contended with just as much sense or reason that a person seventeen years of age and of ordinary intelligence would not know unless instructed or told that fire would burn or water seek a level; or, as observed by the learned trial justice, that it is dangerous to get in front of a moving locomotive, as it can in this case that the plaintiff did not know that he would be injured when he put his hand where he did because he was not told so. One does not need to be told what common sense derived from common observation teaches. The danger was apparent. The risk of greasing the cable while in motion was obvious, which the plaintiff assumed when he attempted to do the work in that way.

But it is said that the question of defendants’ negligence should have been submitted to the jury for the reason that, they violated the provisions of the statute above referred to in permitting the-plaintiff to grease the cable while in motion. This section of the statute provides, among other things, that No person under eighteen years of age and no woman under twenty-one years of age shall be allowed to clean machinery while in motion.” The plaintiff was not cleaning but oiling the cable, and while a fair construction of the statute might and doubtless would include oiling as well as cleaning, yet in either case something more than a violation b-f the statute must be shown to entitle one to recover damages for the injury received by reason of a violation of it. It will .be observed that the statute does not purport to and does not give to one injured solely by reason of a violation of its provisions, a cause of action. (Knisley v. Pratt, 148 N. Y. 372; Freeman v. Glens Falls Paper Mill Co., 70 Hun, 530; S, C., 143 N. Y. 689; De Young v. Irving, 5 App. Div. 499 ; O'Connell v. Clark, 22 id. 466.) In the Knisley case the Court of Appeals held that an employee might, by entering upon the employment with full knowledge of all the facts, waive the performance by the employer of the duty of furnishing the special protection prescribed by the statute. Judge Babtlbtt, in delivering the opinion of the court; observed: “ We- are of opinion that there is no reason in principle or authority why an employee should not be allowed to assume the obvious risks of the business, as well under the Factory Act as otherwise, There is no rule of public policy which prevents an employee from deciding whether, in view of increased wages, the difficulties of obtaining employment, or other sufficient reasons, it may not be wise and prudent to accept employment subject to the rule of obvious risks. The statute does indeed contemplate the protection of a certain class of laborers, but it does not deprive them of their free agency and the right to manage their own affairs.” Under the principle declared in this case, as well as the other cases cited, we think it must be held that the plaintiff waived the protection conferred upon him by the statute. An employer at common law is required to provide his employees with a reasonably safe place to work, and also proper tools and appliances with which to perform the work, but these requirements of the common law may be waived, and the protection sought to be conferred by the statute may also be waived under it. The liability under the statute'is subject to the same qualifications and restrictions to one injured as the common-law liability for not furnishing a safe place, proper machinery, tools and appliances, and a non-compliance of the employer in either casé does not relieve the plaintiff from the burden of proving that his own negligence did not contribute to the injuries sustained, or that he did not assume a known and obvious risk. (Freeman v. Glens Falls Parper Mill Co., 70 Hun, 534.)

It follows that the plaintiff, by attempting to grease the cable while in motion, assumed the risk to be encountered in doing the work in that way, and he thereby waived the protection which the statute afforded him. The complaint was properly dismissed. ■.

The judgment must be affirmed, with costs.

Van Brunt, P. J., Rumsey and O’Brien, JJ., concurred.

Judgment affirmed, with costs.  