
    John Spaulding, by Guardian, Plaintiff, v. The Tucker & Carter Cordage Co., Defendant.
    (City Court of Brooklyn—General Term,
    June, 1895.)
    The provision of section 6 of the Factory Act (Laws of 1889, chap. 560) requiring all cogs to be “ properly guarded,” devolves no greater duty upon the master than was required of him by the common law, and is satisfied where the cogs are so guarded as to meet the demands or requirements of reasonable care.
    Motion for a new trial on exceptions ordered heard in the ¡first instance at General Term after a dismissal of the complaint
    
      
      Charles J. Patterson, for plaintiff.
    
      IT. Q. Atwater and A. B. Cruikshcmk, for defendant.
   Van Wyck, J.

A motion for nonsuit herein was granted, and the plaintiff’s exception thereto ordered to he heard in the first instance at General Term. The plaintiff, a lad of sixteen, employed in a ropewallc, tripped on one of the rails of the track upon which the twisting machine traveled, and, in falling, he extended his hand toward the machine, in the cogwheels of which it was caught and badly mangled. He was not employed to work upon the machine, but to spread the strands along the ropewalk for those in charge of the machine to then attach them thereto and twist into a finished rope, and it can be fairly inferred from the evidence that this duty required him to hold the completed rope taut while it was being reeled on a drum.

The plaintiff’s counsel, on the oral argument herein, acquiesced in the assumption that the case of Buckley v. Gutta Percha, etc., Mfg. Co., 113 N. Y. 540, virtually settled this exception adversely to him, unless the law thereof was changed by the Laws of 1889, chapter 560, section 6. The purpose of this statute, according to its title, was to regulate the employment of women and children in factories, and to provide for the appointment of inspectors to enforce its provisions. The plaintiff insists that defendant neglected to comply with the provision that “ all * * * cogs * * * shall be properly guarded,” and that such failure made defendant liable, or furnished such additional element of negligence as to carry that question to the jury, notwithstanding the decision in Bulkley v. Gutta Percha, etc., Co. Did the defandant fail to comply with such provision % is a question which can only be answered after determining what the words' “ shall be properly guarded ” mean. Do they signify any more than the performance of the duty imposed by the antecedent or common law upon the employer towards his employee, viz., the duty of exercising reasonable care to furnish his employee with reasonably competent and careful fellow-servants, a reasonably safe place to work in, and reasonably safe tools,, implements and machinery to work with or upon ? The expression properly guarded ” must be interpreted in the light of what the then existing law deemed to be proper for aii employer to do under the circumstances. It was properly guarded” if it was so guarded as to meet the demands or requirements of reasonable care. There is no proof that the cogs in question could have been guarded in any manner that would have tended to make them safer for those working around the machine without preventing the use of the same. This provision devolves no greater duty upon the master than the common law did. Freeman v. Glens Falls Paper Mill Co., 70 Hun, 530, 534. That duty has been performed. Bulkley v. Gutta Percha Co., supra.

Of course, if this statute had prescribed that no cogs should be used except such as could be completely boxed in from sight and touch, then another question would have been presented. It is not perfectly clear that the clause in the discretion of the inspector ” does not qualify that in relation to the cogs, and, if this be so, then the latter would be inoperative until such discretion had been. exercised. A legislative intent to vest the inspector with a discretion to designate, within certain limitations, the specific requirements to be enforced in relation to the special machine or appliance, is suggested, first, by the title, to regulate the employment of women and children in manufacturing establishments and the enforcement of same by inspectors ;> second, by the necessity of vesting such discretion in some one, owing to the impossibility of naming in a statiite the specific safeguards to be applied to each part of .every one of the many thousand kinds of .machinery; third, by the use of the phrase “ in the discretion of the inspector ” in the section in question; and, fourth, by the amendment of this section (Laws of 1892, chap. 673, §;8) authorizing the inspector to prohibit the use of any machinery till “ the required safeguards are provided.”

There is no conflict between our views and those of the court in Simpson v. N. Y. Rubber Co., 80 Hun, 416, for the only-question passed upon in that case was whether an employee could waive the neglect of his employer to provide the safeguards required by the statute.

The exceptions must be overruled and judgment ordered for defendant, with costs.

Clement, Ch. J., concurs.

Exceptions overruled and' judgment ordered for defendant, with costs.  