
    Charles E. Swarts, Respondent, v. The R. M. Wilson Manufacturing Company, Appellant.
    Fourth Department,
    November 14, 1906.
    Master and servant—defect in setting up machinery—injury to employee — expert testimony of defect — proximate cause — notice to master of danger — assumption of risk.
    A defect in the adjustment of the parts of a machine constitutes a defect in the machine quite as much as if the parts themselves were defective.
    In an action by an employee to recover for an injury received from a block of wood which was. thrown out of a “shaping machine” brought upon the ground that the machine was improperly set up so that the spindles and knives revolved inwardly and toward the operator instead of outwardly and away from him, it is proper to admit expert testimony of machinists to show that the operation with the knives turning in was attended with more danger than if they had revolved outwardly.
    When the witnesses of both parties agree on the greater danger of this method of operation, a finding that the defendant’s negligence in so setting up the ■ machine was the proximate cause of the accident is justified.
    Where a servant complains of a defect in a machine and the master agrees that if the servant will continue to work, he will remedy the defect on -a certain day, the master assumes risk of injury, from the time of the promise until after the time agreed upon for repair. Hence, when on Monday the plaintiff complained to the defendant of the construction of his machine, but agreed to continue work upon defendant’s promise to repair upon Saturday,-the defendant is liable for an injury caused by such defect upon the intervening Thursday.
    . Appeal by the defendant, The E. M. Wilson 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 Oneida on the 1st day of December, 1905, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 2d day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced on the 4tli day of January, 1905, to recover damages for injuries sustained by the plaintiff while in defendant’s employ, alleged to have been caused solely through its negligence.
    
      Frederick G. Fincke, for the appellant.
    
      Frank C. Sargent and Jerry F. Connor, for the respondent.
   McLennan, P. J.:

The defendant is a corporation engaged in manufacturing bathroom 'supplies at the city of Borne, B. Y. On the 18th day of December, 1902, the plaintiff was in defendant’s employ, engaged in operating a machine called a “ shaper,” consisting of a “ metal table, near the middle of which and about 3 feet apart are two heads, or spindles, about If inches in diameter, which project up 6 or 8 inches above the surface of the table. Upon each spindle are fastened two knives. The spindles revolve very rapidly, and the edge of the wood to be shaped is pressed against the knives by the operator. The operator puts the piece of wood to be shaped on a ‘ form,’ which has spurs on it and a cleat across the back to hold the wood more firmly, and puts the form with the wood on it under a spring guard, which prevents the wood from flying upward- and the hands ■ of the operator from going against the knives, .and shoves the wood against the knives, being careful to cut with the grain. The fact that it is necessary to cut with the grain makes two spindles, instead' of one, desirable, for after the workman has shaped it part way around on one spindle he can change to the other and finish it there.” .

The machine in question was set up and. was being operated in such manner that the two spindles and the knives upon each revolved inwardly and toward the operator standing in front of the machine, instead of outwardly and away from him. It is claimed, and the evidence tends to show, that a large piece of wood was broken from the tank top which the plaintiff was shaping; that it was thrown against the opposite revolving spindle, and by it thrown against the plaintiff, striking him in the abdomen with great violence and causing the injuries complained of. There is also evidence tending to establish the proposition that the operation of such machine when the knives revolved inwardly is attended with more danger to the operator than when made to revolve outwardly. It also appears that with comparatively little trouble, and practically without cost, such machine could have been changed so that the knives would have revolved outwardly, and that it still would have done its work quite as satisfactorily, and that its efficiency would have been in no manner impaired.

Concededly, the operation of the machine in question, when being conducted in the safest manner known, wras attended with great danger. But the plaintiff was fully aware of such danger, and he also knew of the increased danger in operation resulting from the fact that the knives revolved inwardly. There is no suggestion in the evidence that the machine was not perfectly constructed, or that at the time of the accident all of its parts were not in perfect condition, the only complaint being that it was wrongly set up and in such fashion as to cause additional danger in its operation.

Upon these facts, and -independent of any other question, we think clearly it was for the jury to say whether or not the defendant had furnished to the plaintiff a reasonably safe appliance with which to work. If a machine is defective in any of its parts, and is known so to be by the master, he is guilty of negligence if he permits a servant to use the machine without -fully informing him of such, defect. We think that if a machine is not defective in any of its parts, but is being operated in an improper manner and so as to increase the danger attendant upon its operation, that the same rule applies. The simplest and safest machine might become exceedingly dangerous if its parts were improperly adjusted, and a defect in the adjustment of the parts constitutes a defect in the machine quite as much as if the parts themselves were defective, and if an employee is injured as a result of such improper adjustment, which is known to'the master and which is not known to the employee, the master would be liable.

The plaintiff was an experienced machinist, had been in defendant’s employ and engaged in operating the machine in question for a considerable time prior to the accident. He knew and fully appreciated the dangers attending the operation of such machine; knew that the machine in question was being operated.in a manner which unnecessarily increased such danger; that is, he knew that it had been set up improperly and that it was being .operated.improperly. Of course, under such circumstances, unless something occurred which relieved the plaintiff from the assumption of risk, there could be no recovery.

The plaintiff testified in this case that on the Monday previous to Thursday, the day on which the accident occurred, he made complaint to the defendant because the machine was being operated so that the knives revolved inwardly, and stated in substance that, such manner of operation largely increased the danger to him, and threatened to leave defendant’s employ unless such manner of operation was changed, to wit, unless theunaehiue was so adjusted that the knives would revolve outwardly; that the defendant then and there promised that if the plaintiff would continue in its employ, the defendant would make the change the following Saturday, and the plaintiff' states that because of such promise he remained in defendant’s employ. The accident, as we have seen, occurred on Thursday, two days before the time arrived when the defendant had' promised the change would be made. It is claimed that under these facts the plaintiff Was relieved from all assumption of risk, and that if the accident occurred through defendant’s negligence and the plaintiff himself was free from contributory negligence, he may recover solely because of such promise.

It seems to me that such is the only logical meaning of the decision in Rice v. Eureka Paper Co. (174 N. Y. 385), and that it would not be useful for this court to attempt by some finespun theory to distinguish the case at bar from that case. Besides, the Appellate Division, second department, has interpreted the meaning of the decision in that case as contended for by respondent’s counsel. (Citrone v. O'Rourke Engineering Construction Co., 113 App. Div. 518.) In that case the plaintiff was set to work .in a trench about eight-thirty o’clock in the forenoon. He complained to the master that the trench was an unsafe place in which to work because stones above him in the trench were liable to fall upon him. He was told by the foreman in charge of the work to go to work and after dinner he would fix it.” - Plaintiff went to work induced by the promise, and the stones fell on him about ten-thirty o’clock and lie sustained the injuries of which he complained. It was held that “ A master may contract to relieve a servant permanently or for a limited time from the risks of the employment. A promise by the master to repair a dangerous defect, made to the servant to induce him to continue work, constitutes such a contract for the period set by the agreement,' and the master, not the servant, assumes the risk.” In other words, it was held that the assumption of the risk- by the master begins at the time of making the agreement and continues until after the time when it was agreed, that the repairs should be made. In that case, as we have seen, the promise was made at eight-thirty o’clock, and was that the repairs would be made after dinner, and the accident occurred at ten-thirty, several hours before the time arrived when the promise was to be fulfilled. In the case at bar, the promise to repair was made on Monday, and was to the effect that the repairs would be made on Saturday following. The accident occurred on Thursday intervening. The facts of the two cases, so far as the principle involved is concerned, cannot be distinguished.

The question of plaintiff’s contributory negligence was clearly for the jury.

It is also claimed by appellant’s counsel that the court below committed reversible error in permitting four witnesses to express the opinion that the manner in which the machine in question was being operated at the time of the accident increased the danger incident to its- operation over what it would have been had the knives revolved outwardly, the claim being that that question was not properly the subject of expert testimony. It seems to me that the evidence was properly admitted and that the authorities cited by respondent’s counsel fully sustain that proposition. ■ The machine in question was of such a character that it is somewhat difficult to understand how it became more dangerous because of the fact that the knives revolved inwardly rather than, outwardly. In fact I confess that after all the discussion had by counsel upon that question, I am at loss to see how it is so. But the machinists sworn on behalf of the plaintiff and defendant- alike seem to agree that to operate the machine with the knives turning inwardly was attended with much more danger than if they revolved the other way. Under those circumstances we think it was competent for the expert witnesses to say just that.

We think the evidence very clearly justified the conclusion that •the defendant’s negligence in setting up and operating this machine in the manner in which it did was the proximate cause of the accident; that if it had been set up in the other way, such accident would not have happened.

The only interesting question presented by this appeal is, does a master who permits or directs an employee to operate a defective machine, when such defect is known, to the employee and the attendant danger is fully understood and appreciated, become liable for injuries sustained by the employee because of such defect, and solely because the master promised to remedy the defect at a certain time, and where the accident resulting in the injuries complained of occurred prior to the time when it was promised such defect would be remedied ? Our answer is in the affirmative. We think such is the logical conclusion to be drawn from the decision in the Rice Case (supra), and clearly such was the interpretation given to it in the case of Citrone v. O'Rourke Engineering Construction Co. (supra).

It is concluded that the judgment and order appealed from should be affirmed, with costs.

All concurred, except Williams and Hash, JJ., who dissented.

Judgment and order affirmed, with costs.  