
    Edward Mattos, Respondent, v. Edmund Felgenhauer and Others, Appellants.
    Second Department,
    January 10, 1913.
    Master and servant:—negligence—injury to employee while attempting to place belt on pulley — defects not contributing to accident — belt consisting of several pieces —unguarded bolts upon revolving shaft—contributory negligence—attempt to replace belt from wrong side of shaft—failure of master to give instructions—familiarity of plaintiff with risks—Employers’ Liability Act—verdict against weight of evidence.
    Where a servant while attempting to shift a belt upon a pulley on a revolving shaft had his arm caught by the belt, causing injury, negligence of the master cannot be predicated upon the fact that the belt consisted of several pieces of leather of unequal width when there is no proof that that fact contributed to the accident.
    Nor is the master liable because the ends of the belt fastenings may have been left sticking up when the proof shows that the plaintiff when he repaired the belt could easily have flattened" the ends of fastenings by hammering them down.
    
      Mor can the master be held liable because bolts projecting from a shaft coupling adjacent to the pulley were unguarded where it does not appear that the belt or any part of the plaintiff’s person or clothing came in contact with the bolts for they did not contribute to the accident.
    Moreover, where the plaintiff had worked around machinery for seven years, and in the defendant’s shop for a year and a half prior to the accident and he attempted to put the belt over the pulley on the wrong side of the revolving shaft, that being proven to be exceedingly dangerous, he was guilty of contributory negligence which bars a recovery.
    The contributory negligence of the plaintiff in working upon the wrong, side of the shaft is not excused by reason of the fact that certain' material was temporarily placed upon the floor of the shop so as to interfere with his placing a ladder upon that side, if the .material could easily have been removed.
    Owing to the experience of the plaintiff in working around machinery and to the fact that he had frequently adjusted the belt on the same pulley, he cannot excuse his contributory negligence upon the ground of ignorance, and it wa's proper for the court to charge that the master was ■ under no duty to instruct him as to the proper method of putting on the belt.
    Although plaintiff’s freedom from contributory negligence must be submitted to the jury under the Employers’ Liability Act, a judgment for the plaintiff will be reversed where the verdict on that issue is clearly against the weight of evidence.
    Appeal by the defendants, Edmund.Felgenhauer and others, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of February, 1912, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 20th day of February, 1912, denying the defendants’ motion ■ for a new trial made upon the minutes.
    . John C. Robinson [James B. Henney with him on the brief], for the appellants.
    
      William E. Butler, for the respondent.
   Burr, J.:

Plaintiff, while in defendants’ employ, attempted to shift a belt upon a pulley on a revolving shaft. Upon this shaft and distant two and a half inches from .said pulley was a coupling. Upon the side of the coupling nearest to the pulley certain bolts projected a distance of about three-sixteenths of an inch and they were unguarded. According to plaintiff’s evidence the belt consisted of several pieces of leather, not all of which were equal in width, that were fastened together by clips or fasteners,, and one of plaintiff’s witnesses testified that on one of them the teeth were sticking out, and the others there were hooks; they were bent over and they were sticking up.” Upon the day of the accident the belt had stretched, and, under direction of defendants’ foreman, plaintiff had cut out a piece about two inches wide, fastened the ends together and was attempting to replace the belt over the pulley. The shaft was some distance above the floor, and in order to reach the pulley it was necessary for plaintiff ‘to go upon a ladder. He placed this against the shaft, between the machine and the pulley, and upon the side of the shaft toward which the' pulley was revolving. In order, from this position, to reach the belt it was necessary for him to extend his arm across the shaft and either above or beneath it. At first he said that his arm was above the shaft, and then that it was underneath. It was certainly in one position or the other. While his arm was in this position it was caught in the belt and drawn around the shaft, and severe injuries resulted therefrom.

Plaintiff charged defendants with negligence (1) in allowing the ends of the bolts upon the coupling to be unguarded, (2) with respect to the belt and its fastenings, (3) because of the close proximity of the coupling to the pulley, and (4) in not providing some appliance by which the belt might be put on other than by hand.

With respect to the second ground of alleged negligence, the proof fails. There is nothing from which a jury could find that the fact, if it is a fact, that the belt consisted of several pieces of leather of unequal width caused it to nm unevenly or in any manner contributed to the accident. If the ends of the fastenings were left sticking up it was due to plaintiff’s negligence, for the testimony of the plaintiff’s witness Buggies is to the effect that “ When anyone has the belt off and repairing it,” it is only the work of a minute to flatten those down; * * * they can do it as fast as they can strike with the hammer, practically.” With respect to the unguarded ends of the bolts, if there is sufficient evidence to justify a jury in believing that this was an unusual and dangerous condition, and to base a finding of negligence thereupon, it is clear that this in no degree contributed to the accident. It did not appear that the belt or any part of plaintiff’s person or clothing came in contact with these. The testimony of plaintiff himself is positive to the effect that his arm was caught in the belt and not in the projecting bolts. After the accident the sleeve of his coat was found twisted up with the belt around the shaft. The belt had wrapped around the shaft once, then the sleeve, and then there were eight or nine additional wrappings of the belt around the Shaft before it started to twist toward the coupling.

With respect to the other alleged grounds of negligence, while the evidence is conflicting, we think that there was enough to require the submission of these questions to the jury, and it would follow that the judgment must be affirmed but for evidence affirmatively establishing plaintiff’s contributory negligence. He attempted to put the belt over the pulley from the wrong side of the shaft and while standing between the machine and the pulley. That this was an exceedingly dangerous thing to do is established, not only by the testimony of all the witnesses for the defendants, but by every witness called for plaintiff who had any practical experience with the operation of machinery. The only evidence to the contrary comes from the lips of a paid expert called by plaintiff, and his testimony is so at variance with ordinary and well-known principles of mechanics as to be entitled to no credence whatever. The person of ordinary intelligence must know that if the arm is stretched over or under a shaft revolving toward him and any portion of his person or clothing is caught between the shaft and the pulley, it must be drawn around the shaft instead of being quickly released. On the other hand, if the direction of the revolution is away from the person, and anything catches between the belt and the shaft, the quicker.the revolution is made the sooner release is effected. In addition, the probability of being caught is greatly diminished if the shaft is approached from the proper side, since in that case it is unnecessary to put any portion of the hand or arm over the shaft itself.

The plaintiff attempted to show that he could not place the ladder on the other side of the shaft for the reason that certain columns interfered therewith, hut it appeared that these columns were no part of the building itself, but were manufactured material lying on the floor of the machine shop, awaiting removal. There is nothing to indicate that these might not have been moved in order to enable the proper location of the ladder.

Plaintiff also sought to convince the jury that he was ignorant of the proper method of approaching the shaft in order to place the belt over the pulley. It appeared that he had been working around machinery for seven years, and had worked in defendants’ shop for a year and a half prior to the date of his injury, had frequently put belts on before, had safely performed the operation with other belts eight times on the preceding day, and had adjusted this same belt over the same pulley about three weeks before. The jury were not justified in finding that his alleged ignorance excused his culpable carelessness, and the learned trial court very properly told it that defendants were under no duty to instruct plaintiff as to the proper method of putting .on the belt. It may he that, in view of the testimony of the expert above referred to and in accordance with the provisions of the act relating to employers’ liability, it was the duty of the trial court to submit the question of plaintiff’s freedom from contributory negligence to the jury. (See Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352.) But a verdict based upon an affirmative finding upon that point is so clearly against the weight of the evidence that it should not he permitted to stand.

The judgment and order denying a motion for a new trial should be reversed and a new trial granted, costs to abide the event.

Jerks, P. J., Hersohberg and Carr, JJ., concurred^ Thomas, J., concurred upon the ground that the only issue relating to defendants’ negligence is that the coupling was too near the pulley.

Judgment and order reversed and new trial granted, co§ts to abide the event.  