
    Mary T. Daly, App’lt, v. The Alexander Smith & Sons’ Carpet Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Master and servant—Negligence—Assumption of .risk.
    Plaintiff, who was employed by defendant as a weaver, was injured by a wire flying out and striking her eye. It was her duty to watch the wires, and if one broke to replace it with a good one which hung near by. These were inspected before using. There was no proof that these wires were not examined or that a.break was usually dangerous. Held, that no neglect on the part of .defendant was shown, and that the rule that an employe takes the risks of the employment applied.
    Appeal from judgment dismissing the complaint
    Action to recover for injuries alleged to have been caused by defendant’s negligence.
    
      James M. Hunt, for app’lt; Joseph F. Daly, for resp’t.
   Barnard, P. J.

The plaintiff is a carpet weaver. On the 18th of September, 1891, while weaving for the defendant, a head came off from the end of a wire and the wire flew out and hit the plaintiff in her eye, from which blow she subsequently lost the use of the eye. Wires such as the one which caused the accident were liable to fly loose. There were spare wires prepared, and it was the custom, of the weaver to put them in when one was discovered to be bad. The proof does not show that a break in the wire is usually dangerous. The machine must be at once stopped so as to replace the broken wire, otherwise the weaving will be bad. It does not require a loom fixer to put in a wire in the place of a broken wire. A loom fixer usually went around twice a day. He is not proven to have omitted the inspection on the day of the accident. When the loom is in motion he can see a defect such as caused the accident no better than the weaver. It was the plaintiff’s duty to watch the fabric woven and to watch the wires, and if one broke to stop the loom and replace it with a good wire, which usually hung in front of the loom. The inspector usually did not put the wire into the loom, the weaver did. The inspect- or’s duty was to examine the wires before using. There is no proof that the wires were not in good condition. There is proof that the wires will fly in spite of the greatest care, fly in an instant The proof, therefore, fails to show any neglect upon the part of the master, and the rule that an employe takes the risks of the employment applies to her.

The judgment and order denying new trial should, therefore, be affirmed, with costs. •

Pratt, J., concurs; Dykman, J.,: not sitting.  