
    Marshall Johnson, Appellant, v. Onondaga Paper Company, Respondent.
    Fourth Department,
    May 2, 1906.
    Negligence—injury to employee by slipping on grease spot—foot caught in unguarded pulley—erroneous charge as to knowledge of master.
    In an action by an employee to recover damages for injuries received by reason of his foot slipping upon an oil spot on the floor, causing his foot and ankle to be drawn into an unguarded belt and pulley, claimed to have been maintained in violation of theiLabor,Law (§ 81), it is error to grant a,nonsuit upon the ground that the defendant was not liable unless the servant gave notice of the negligence of which he complained, or the same was known to the master, and on the ground that the plaintiff should show actual knowledge by the master or any superior person of the defect of which complaint was made.
    Appeal by the plaintiff, Marshall Johnson, from'a judgment of ,.the Supreme Court in favor of the defendant, entered, in the office of. the clerk of the county of Onondaga on the 20th day of January, 19Ó5, upon the disniissal of the complaint by direction of the court after a trial at the Onondaga Trial Term.
    
      Frank C. Sargent, for the appellant.
    
      Theodore F. Hancock and William S. Farmer, for the respondent.
   Nash, J.:

The action was brought to recover damages resulting to the plaintiff through the alleged negligence of the defendant by reason of his right foot slipping upon a grease or oil spot upon the floor, causing-him to be thrown down, and in falling his left foot and ankle were drawn into an unguarded belt and pulley, which the defendant maintained in violation of section 81 of the Labor. Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192), which provides that all gearing, belting,' shafting, set-screws and machinery, of every description, contained in a manufacturing establishment shall be properly guarded. (See Labor Law, § 2.) .

' At the time of the injury complained of, the plaintiff was in the employ of the defendant s! its paper mill at Marcellus Falls, Onondaga county, as a “backtender” upon a paper machine, where he had been employed for about a year; as such his duties called him to assist in feeding the machine and to oil it whenever necessary. The machine was a standard paper-making machine known as a “ Fonrdrinier Machine,” about seventy-five feet long, sixty-eight inches wiide and three feet high. It had along the top of the machine a series of tube rolls- carrying a wire screen over which the pulp goes, and as the pulp is carried over the screen water is sifted out, and in oiling the ends of the tube and other parts of the machinery oil gets on the floor, and there is always -considerable water on the floor around the machine. The pulley, belt and shafting connected with the screen shaft and the fan pump, from which the power was transmitted to this machine, were changed eight days befofe this accident; before these changes were made there was a single pulley and shaft; these were removed and new and different pulleys and shafting installed, which were placed in a different location; two pulleys in the place of a single pulley, having other belts and shaftings. During the eight days after the new belt and pulleys were installed, and at the time of the accident,, the' belt and pulleys were unguarded.; there were no guards, protection or covering over either belt or pulleys,'of any kind. The plaintiff, at the time he was injured, went behind the machine for the purpose of oiling the tube rolls,, and was between the “ fan-pump pulley” and the side of the machine, and -trying to work himself around between the fan pump pulley and the fan pump; the fan pump was one and one-lialf feet from the belt, operated by a shaft; he was in the act of stepping over this shaft, and at the same time stepping under this feed box, and while in a stooping, crouching position astride the fan pump, his head about -three feet from-the floor, he slipped upon-the grease or oil on the floor; in falling his left foot caught between the upper part of the pulley and under the upper belt. His -foot went around the pulley and broke his leg, and permanently injured his ankle and foot.

Upon the motion for a nonsuit the learned justice in announcing the decision said that under the Employers’ Liability Act (Laws of 1902, chap.- 600) the defendant is not liable, except where the servant gives notice to the employer of the negligence of which he complains if he knew it, as he did in this case, except where it shall appear that the defect or negligence - was known to the employer ;- that that meant personal knowledge, not constructive notice; that the plaintiff must'show that the, employer had actual knowledge, assuming that the servant knew of the defect and did not give notice, and that the pulley which had been changed eight days before was put up by somebody undoubtedly in the employ of the company, but that it may not have been done with the knowledge of the company. The court permitted the case to be reopened and the plaintiff recalled to give further evidence, and the motion for a nonsuit was renewed. The court in granting the motion said: “ I will grant the motion * * * simply on the ground that there is no evidence here from which the jury might find personal knowledge on the part of the employer or any superior person of the defect of which complaint is here made.”

The appellant cites Twist v. City of Rochester (37 App. Div. 307) where this court held that “it was no defense that the charter of the city provided that it should not be liable for any unlawful obstruction of a roadway, unless actual notice of the unsafe condition had been given to the city officers having charge of the highways a reasonable time before the happening of such injury, as, in so far as the city was liable for the negligent construction of the patrol line and its acts in that connection, it needed no actual notice, because it was presumed to know'its own acts, and, therefore, had such notice.”

We think the rule there held is applicable here, and, therefore, the nonsuit was erroneously granted.

Whether it was practicable or feasible to inclose or guard the particular belt and pulleys is a question for the jury, and should be left open for determination when the case is fully presented upon all the evidence that may be adduced upon a new trial, as also the question whether the plaintiff voluntarily and unnecessarily chose an unsafe method of oiling the machine at the place where he was injured. The circumstances in this respect may be made clearer upon another trial. We place our decision solely upon what we regard as an erroneous conclusion of the court upon the question of the notice which defendant must be deemed to have had of the condition of its machinery.

The judgment should be reversed and a new trial granted.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.  