
    John Moran, Respondent, v. George Mulligan, Appellant.
    First Department,
    December 30, 1905.
    Negligence — injury to. employee in planing mill — failure to show defect in machine — when no duty to warn employee.
    The plaintiff, in the employ of the defendant, was injured by a knife flying out of a molding planer owing to the breaking of a bolt which attached it to a revolving drum. It was shown that such was the usual mode of attaching .the knife and that there was no defect in the broken bolt which would have been disclosed on an examination, or that it was an improper .way of fastening the knives.
    
      
      Meld, that there was a total failure to prove negligence on the part of the - defendant;
    That plaintiff was bound to show that the bolt was defective or out of repair, and that an inspection would have disclosed a defect which could have been remedied; ‘ ' '
    That defendant was under no obligation to warn the plaintiff that such accident might happen, as he had no reason to anticipate the same;
    That such accident was a risk incident to the employment; ■
    That the absence' of a hood' designed only to carry off shavings and not as a protection against flying knives did not show negligence.
    Appeal by the defendant, George Mulligan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of üew York on the 31st day of March, 1905, upon, the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 10th day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes. ■
    
      Eugene A. Philbin, for the appellant.
    
      G. W. Hopkins, for the respondent.
   McLaughlin, J.:

The defendant, on the 9th of January, 1902, operated a planing mill in the city of New York, and on that day the plaintiff, one of his employees, while removing shavings from near a molding machine, was struck ánd seriously injured by a knife which was used in that machine becoming detached, and this action was brought to recover the damages alleged to have been sustained The plaintiff had a recovery and defendant appeals.

In the molding machine there- were several knives attached to a cylinder by means of bolts which, when the machine was in full operation, revolved upwards of 3,000 revolutions per minute. The size of the bolts depended upon the size of the knife, different sizes of knives being* inserted according to the size of the moldings to be made, and the size of the bolt used to fasten the knives depended upon the size of the knife itself. Attached to or a part of the machine was a drawer or pocket in which were kept the different sizes of bolts required in operating the machines. On the day of the accident one Trefcer, who was operating the machine and had done so for about eight months, shortly after going to work changed the knives and then started up the machine and within a very short time thereafter a bolt broke and two of the knives flew out, one of which struck the plaintiff, inflicting/ the injuries of which he complains. There was no proof that there was any defect in the bolt which an examination, when it was used to secure the knife, would have disclosed, or that this was an .improper way of fastening the knives ; on the contrary, the evidence is uncontradicted that it was a proper way to fasten them and Trefcer testified that while he had operated the machine he had never before known a bolt to break.

The plaintiff, of course, assumed the risks and dangers incident to the business carried on in the mill, which included the making' of moldings by the machine in question. The defendant’s obligation to him was to see to it that the machine was reasonably safe, and there is .no proof that he did not perform his duty in this respect. The fact that the bolt broke is not, in and of itself, sufficient evidence to sustain a finding of negligence that the defendant had not performed his duty. (De Graff v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 125 ; Dobbins v. Brown, 119 id. 188.) Before negligence could be predicated upon the breaking of the bolt, plaintiff was bound to prove that it was defective or out of repair, and that an inspection before it broke would have' disclosed the defect and the same could, have been remedied. (Reiss v. N. Y. Steam, Co., 128 N. Y. 103.) Here, there is no such proof. But it is-said defendant was negligent because he did not warn the plaintiff that a knife might fly out of the machine. There was no occasion for giving such warning. The defendant had no. reason to anticipate that the knife would fly out. He had procured what he had every reason to believe was a safe machine and that it had been supplied with proper knives and fastenings. This machine had been operated for a long time and the knives fastened in precisely the same way that they were on the day of the accident and he had a right to believe (basing his judgment upon what the machine had done in the past) that an accident of this .character would not occur. In. addition to this, that a knife might fly out or the machine break was a risk incident to plaintiff’s employment. It is a matter of common knowledge that in the operation of machinery, notwithstanding every precaution that may be taken by the owner or operator, some part of the same may break and by reason thereof persons be injured. This every one knows and, therefore, there is no occasion for informing an employee of what may possibly happen in this respect because he knows it just as well as the master' does.

It is also suggested that the jury might have found defendant negligent because the hood or covering of the knives was not on at the time the accident occurred. This hood or covering was not intended as a protection to workmen against knives flying out of the machine, but was solely for the purpose of conveying the sawdust and shavings from the machine to some other part of the building. The truth is, the case is barren of any evidence which would have justified a finding that the defendant omitted to perform any duty which he owed the plaintiff. When the plaintiff entered his employ he did not guarantee that he would not be injured, nor was he bound to furnish plaintiff an absolutely safe place in which to work. What he was bound to do was this, to use reasonable care and prudence in providing a safe place. He was not bound to furnish the best machinery, but only such as was reasonably fit for the work, and he satisfied the requirements of the law if, in the selection of the molding machine, he used that degree of care which a man of ordinary prudence would use, having regard to his own.safety, if he were procuring it for his own personal use. (Burke v. Witherbee, 98 N. Y. 562 ; Harley v. B. C. M. Co., 142 id. 31.)

To hold, under the facts here presented, that defendant is liable, would, in effect, make an employer a guarantor of the safety of his employees.

The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Brien, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

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