
    Larence J. Thompson, an Infant, by Ida M. Roode, his Guardian ad Litem, Appellant, v. Cary Manufacturing Company, Respondent.
    
      Negligence — assumption by an employee operating a defective' machine, constituting a violation of the Factory Act, of the risk of injury involved in its use.
    
    Where a boy employed to' superintend the operation oí a machine, which had been temporarily stopped by removing the driving belt from a fixed pulley on an overhead revolving shaft, requests the foreman in charge of the room to readjust the belt, and, upon receiving a refusal, attempts to readjust it himself, and in so doing has his wrist caught, his arm torn off and his legs fractured, he cannot recover damages from his employer for the injuries so sustained even though it be assumed that the absence of a loose pulley on the machine and the presence of set screws in the revolving shaft near the fixed pulley constituted defects in such machinery and were a violation of the Factory Act, and that the accident occurred from something relating to the condition of the revolving shaft and thé pulley and the belt at that shaft, where it appears that the boy knew of the condition of the machinery.
    McLaughlin and Hatch, JJ., dissented.
    
      Appeal by the plaintiff, Clarence J. Thompson, an infant, by Ida M. Roode; his guardian ad litem from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of June, 1900, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.
    
      J. Aspiwwall Hodge, Jr., for the appellant.
    
      Fromk Y. Johnson, for. the respondent.
   Patterson, J.:

Looking at the evidence as it appears in the record before us in the most favorable light for the plaintiff in which it can be regarded, we are forced to the conclusion that the lamentable accident from which he suffered most serious injuries was one resulting from his own imprudence and for which the defendant should not be held responsible. The plaintiff was an employee of the defendant, and it was his duty to superintend the operation of three machines for cutting out pail clasps from strips or ribbons of steel, which, when placed in the machines, were passed automatically through them. He had been engaged in the performance of that duty for several months prior to the accident. It was necessary to stop the machines whenever the steel ribbons were to be put in and also wh.en' the punches or knives broke or required sharpening. These machines were upon frames standing upon the floor of a room in the defendant’s factory. The power was communicated to them by a belt which passed over a pulley on a revolving shaft above the machines and around a fixed pulley upon a shaft forming part of the machines. These machines were so constructed that when it was necessary to stop them for the purpose of putting in a new steel ribbon, it cotild be done by means- of a clutch ; but when knives or punches were to be removed, or in any way became broken, or when they or the dies needed grinding, or a driving' rod was broken, they were stopped by pushing the belt tiff. There was no loose pulley, and there were set screws on the revolving shaft. On the morning on which the accident occurred one of the machines was stopped in order that new punches and a new die might be put in. At about twenty minutes before one o’clock the machine was ready to start. The plaintiff went to a Mr. Brown, who was the foreman in charge of the room, and asked him to put on the belt, which Brown did by climbing upon the machine, standing on top of the driving arms and putting the belt on the pulley fixed on the revolving shaft. About three o’clock in the afternoon the machine was again stopped to grind down new punches or dies. When those had been put in the plaintiff went to Mr. Brown and asked him to put the belt on and received the reply, “ Don’t bother me, I haven’t got no time.” The plaintiff then went away and about fifteen or twenty minutes after-wards returned to Brown and asked him again to put the belt on and Brown answered, Put the belt on yourself br let the damned thing go to hell.” Thereupon Brown went away to the toilet room and did not return until after the accident • happened. After Brown retired, the plaintiff, in imitation of what he had seen Brown do, mounted the machine, stood upon the driving arms, reached up to the revolving shaft and attempted to put the belt over the pulley on that shaft, and in doing so his wrist was caught, his arm was torn off and he fell upon the machine, fracturing both his legs, and thus he has become maimed and crippled for life.

No instruction was given to the plaintiff concerning the proper method of working or using these machines before he was set to work upon them, and we will assume it to have been proven that the absence of a loose pulley on the machine and the presence of set screws in the shaft, near the fixed pulley on that shaft, constituted defects in the machinery and were violations of the Factory Act, although we do not so decide. But it is apparent from the plaintiff’s own testimony that he well knew the condition of the machinery; he knew there was no loose pulley on the machine, and he gives a minute description in his testimony concerning the set screws on the revolving shaft. It is not quite clear to what specific direct cause the accident is to be ascribed, but it is clear that the danger to which the plaintiff was exposed was in starting the machine by putting the belt over the pulley on the revolving shaft, and that the accident occurred from something relating to the condition of that shaft and the pulley and the belt at' that shaft. The plaintiff testifies that while he was standing on the machine he tried to keep the belt away from the collar and a set screw, and he knew tjiat if it got caught there it would cause trouble and, therefore, he tried to keep it'away and he thought he had done so.

It is quite plain that the plaintiff knew, of the situation and condition of the machinery, and that being so, he, voluntarily undertaking to start it as he did, stands in the position of one knowing and appreciating a danger, thus voluntarily assumed, and, therefore, the liability under the Factory Act (Knisley v. Pratt, 148 N. Y. 372) or under the general rule of law is not to be fixed upon- the defendant, for the plaintiff himself is primarily responsible for the accident. Here we find the plaintiff cognizant of peril to which he might be exposed, performing an act which he was under no obligation to do, and which it was not within his duty to perform, and which he was not directed nor in any sense compelled to perform. He was working not by day’s wages, blit his pay was regulated by the quantity of woi’k turned out by the machines, and in his evident anxiety to incréase his earnings he applied to the foreman to put on the belt so that the machine might be set working; he applied to the person whose duty it was to put on that belt, and when that person refused the plaintiff was not directed or required to put it on himself; he was simply left the choice of doing it himself or letting it remain undone.

All the evidence points unmistakably to the conclusion ’that this unfortunate plaintiff assumed an obvious risk of his own volition, and the case is thus brought within the rule announced in Crown v. Orr (140 N. Y. 450); Knisley v. Pratt (148 id. 372); White v. Wittemann Lith. Co. (131 id. 631); Hickey v. Taaffe (105 id. 26); De Young v. Irving (5 App. Div. 499).

There was nothing that could have been properly left to the jury on the evidence introduced by the plaintiff, and in this view of the case it becomes unnecessary to consider other questions that have been argued.

The judgment and order appealed from must be affirmed, with costs.

Van Brunt, P. J., and Laughlin, J., concurred; McLaughlin and Hatch* JJ\, dissented.

Judgment and order affirmed, with costs.  