
    Mary E. Travis, an Infant, Suing as a Poor Person, by James Crooke McLeer, Her Guardian ad Litem, Respondent, v. Rudolph M. Haan, Appellant.
    Second Department,
    April 26, 1907.
    Negligence — failure to guard machinery — requirement of section 81 of the Labor Law may be waived — evidence — erroneous exclusion of communications to physician.'
    The duty imposed on a master by section 81 of the Labor Law to guard machinery is one which may be waived by the servant, but the question of waiver or - assumption of. the risk is for the jury. ,
    
      It is error to exclude communications made by the plaintiff to her physician stating how an accident happened if this information was not necessary to professional treatment. Such communications are not privileged under section 834 of the Code of Civil Procedure which applies only to such information communicated to a physician as is' necessary to enable him. to act in that capacity. In order to enable the physician to treat the wounded hand, it was not necessary to tell him that she carelessly got her hand into the machine.
    Appeal by the defendant, Rudolph M. Haan, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of May, 1906, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 18th day of May,*1906, denying the defendant’s motion for a new trial made upon the minutes."
    
      David E. Manning. \_Myron 3. Ojgpenheim with him on the brief], for the appellant.
    
      William E. G. Mayer [ James Crodke MeLeer with him on the brief], for the respondent.
   Gaynor, J.;

The plaintiff was at work feeding a mangle. She had to spread the linen piece out upon a feed apron, which carried it along to the rollers and steam heated- cylinders of the mangle, through which it went. In someway the plaintiff’s hand got in between-the first roller and the cylinder. She was unable to tell how it happened. She did not need in the' work to put her hand against the cylinder or roller. Oh these facts the plaintiff was not entitled to recover as the-law formerly was (Hickey v. Taaffe, 105 N. Y. 26).

This machine, had a small wooden guard roller across the apron ' two fingers’ width or more from the cylinder, but -it had been taken off about two weeks before the accident by the foreman. The plaintiff did not ask to have it put back; the workers, it appears, did not like it; it rubbed the ends of their fingers. The plaintiff understood all about it arid the machine, and was willing to work without it. The Labor Law (sec. 8Í) requires machinery to be properly guarded, but a statutory obligation of employer to employe is on the same footing, and no more than, a common law obligation. Each is simply a legal obligation, and the one may be waived the same as the other. It is a simple matter' over which words have been multiplied (Knisley v. Pratt, 148 N. Y. 372).

But chapter 600 of - the Laws of 1902, sometimes .called the employer's’ liability act, no longer permits, the courts to rule as matter of law, in an action brought under that act, as is the case of this action, that an employe assumes the risk caused by the employer’s failure to discharge any duty of safety, or is guilty of, contributory negligence,- by continuing in the work with knowledge of such failure (sec. 3), The trial Judge therefore properly submitted those questions -to the jury.

The exclusion of the testimony of the doctor of what the plaintiff told, him of how 'the accident happened was reversible error. That he was treating her professionally did not make the evidence ■ inadmissible under section 834 of the Code of Civil Procedure upon her objection. The' prohibition of that section only applies to information of- patient to physician which was necessary to enable him to act in that capacity.” She did not need to tell him that shé carelessly'got her hand into the machine to enable him- to treat the injuries to it (Green v. Met. St. R. Co., 171 N. Y. 201).

The'judgment and order must be reversed.

Hirschberg, P. J., Woodward, Jenks and. Hooker, JJ., - concurred.

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