
    Eldridge v. Atlas S. S. Co.
    
      (Supreme Court, General Term, First Department.
    
    January 10, 1890.)
    Master and Servant—Risks or Employment—Seamen.
    In an action for personal injury, plaintiff alleged that he shipped as a seaman on one of plaintiff’s vessels, and was required to operate one of three winches, used in handling the cargo; that the other two winches had the cogs covered, but the one operated by plaintiff was open and dangerous, as plaintiff was required to reach over the exposed cogs while operating it, and that in doing so three of his fingers were cut off; and that plaintiff had no knowledge of the dangerous character of the machine at the time he shipped. Held that, ,as plaintiff could not refuse to work the winch without danger of punishment, and his exposure was not voluntary, his complaint stated a good cause of action.
    Exceptions from circuit court, New York county.
    Action by Alfred Eldridge against the Atlas Steam-Ship Company to recover for personal injury received while in defendant’s employ. On trial the complaint was dismissed, and plaintiff excepts.
    Argued before Van Brunt, P. J„ and Brady and Daniels, JJ.
    
      Jacob Fromme, for plaintiff. Wheeler & Cortis, for defendant.
   Brady, J.

This action was brought to recover for personal injuries sustained by the plaintiff by reason of the alleged negligence of the defendant. Upon the trial the complaint' was dismissed, and the exceptions directed to be heard in the first instance at the general term. It appeared that on the 9th of November, 1886, the plaintiff shipped on the Alvena as an able-bodied seaman, and went on board the ship on the morning of the 10th. The vessel was bound from New York to Kingston. There were on board three winches,—machines for the purpose of removing the cargo. In winches Nos. 1 and 2 the cog-wheels were covered, and therefore guarded. They were not in No. 3, and therefore were unguarded. In using the machine it was necessary for the man attending it to extend his hand over the cogs to reach a lever, which was a necessary working part of the machine. On the 23d of November the Alvena, then at Aspinwall, was hauled along-side of the Athos to ship its cargo to that vessel. The plaintiff was ordered by the chief officer to drive winch No. 3, although it was not covered, as we have seen, and therefore in a dangerous condition. When-the plaintiff boarded the Alvena he knew nothing of the construction of the vessel, or of her winches, and never was on board of her before. While working the winch lie had to reach over the cogs to get the lever to reverse, and at the same time was compelled to shut off the steam and look for the signal from the commanding officer, and come back, and, while thus engaged, his left hand was caught in the cogs and three of his Angers cut off. All the winches on the vessel except Ho. 3 were guarded by a cover, as already suggested, which was permanent, screwed down, the object of which was to protect the hand from being injured by the cogs. The plaintiff, having shipped on board the vessel, was bound to obey orders, and could not refuse, without danrer of punisiiment, to work the winch as commanded. His exposure was not therefore voluntary, except so far as that might be inferred from his shipping as a seaman on board the vessel; and herein lies the plaintiff’s right of action, if any exist, under the authorities.

It seems to be well settled that the defendant is not bound to supply a machine which is absolutely safe, or which contains the latest improvements, and that an employe, in accepting service with a knowledge of the character of the machine, the dangers of which are apparent, assumes the risk incident to tile employment, and cannot call upon the defendant to make alterations to secure greater safety, or recover for injuries arising from service under such conditions. Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. Rep. 286; Gibson v. Railway Co., 63 N. Y. 449; Buckley v. Manufacturing Co., 113 N. Y. 540, 21 N. E. Rep. 717. But in those cases the employment was upon the machine directly, which was seen at the time of the employment, and therefore apparent, and its defects and dangers visible. But here the defendant shipped without any knowledge whatever of the character of these winches, and his obligations were such that a refusal to work them when commanded would necessarily involve serious consequences to him. He was bound to obey orders which were lawful,—that is, not mala per se or mala prohibita; and for a refusal would have forfeited his wages, or been punished. 1 Pars. Mar. Law, 466; section 4596, Rev. St. U. S. 1878, (2d Ed.) p. 890. The general rule, as stated in Sweeney v. Envelope Co., 101 N. Y. 524, 5 N. E. Rep. 358, is that the servant accepts the service subject to the risks incidental to it, and, where the machinery and implements of the employer’s business are at that time of a certain kind and condition, and the servant knows it, he can make no claim upon the master for other or different safeguards. Under such circumstances, the servant is regarded as voluntarily taking the risks resulting from the use of the machinery, unless the master, by urging •on the servant, or coercing him into danger, or in some other way, directly •contributes to the injury.

Under the facts disclosed the plaintiff had no alternative but to obey; and, whether he was guilty of contributory negligence or not, particularly when it is considered that the other winches were covered, and the workmen protected from injury, if, indeed, that question is at all presented in this case, was one at least for the jury to determine. This view is predicate of the ignorance of the plaintiff of the character of the winches, whether safe or dangerous, when he accepted employment, a,nd his compulsory service at a dangerous machine, resulting from the peculiar character of his contract, and its duties and obligations, and of the defendant’s apparent negligence in leaving the winch uncovered,—a precaution, the utility and necessity of which seems to have been conceded by the use of the covering on similar machines on board the same vessel. We think that there must be a new trial, with costs to plaintiff to abide the event. All concur.  