
    William Martin, an Infant, by Hermine Martin, His Guardian ad Litem, Respondent, v. Walker & Williams Manufacturing Company, Appellant.
    Third Department,
    November 25, 1908.
    Master and servant — negligence — injury by unguarded rollers — accident not to be anticipated.
    The plaintiff, employed about a machine, slipped on the floor and, thrusting his arm past unguarded cog wheels which were nearest to him and constituted the most dangerous portion of the machine, extended it so far that it was caught in the rollers actuated thereby. The machinery had been inspected by the State Factory Inspectors without criticism, and it appeared that guards to such rollers when used by other employers were solely for the purpose of preventing waste from flying into the room and not for the protection of employees, and there was no claim that the cog wheels and machinery nearest plaintiff which were the more dangerous part of the machinery could have been guarded.
    
      Held, that the accident was not to be anticipated and the plaintiff was not entitled to recover.
    Chester and Kellogg, JJ., dissented.
    Appeal by the defendant, the Walker & Williams Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 30th day of March, 1908, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 31st day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Countryman, Nellis & Dubois [Andrew J. Nellis of counsel], for the appellant.
    
      John Scanlon, for the respondent.
   Cochrane, J.:

This action on a former appeal is reported in 122 Appellate Division, 280. A judgment in favor of plaintiff was reversed on that appeal because plaintiff, had been permitted to recover for the negligence of.defendant in allowing the rollers of a garnet machine operated by it to remain unguarded or uncovered, which negligence was not alleged in the complaint. Plaintiff was an employee of the defendant and his duties required him to work around this machine. His contention is that he slipped in a pool of oil on a platform adjacent-to the machine and in falling thrust his hand into the rollers and was thereby injured.

After the decision on the former appeal plaintiff amended his complaint so as to allege negligence of the defendant because of its. failure to guard or cover the rollers. At the subsequent trial which we are Mow reviewing this was the only ground of .defendant’s negligence submitted to the jury.

The rollers in which plaintiff was injured were a conspicuous feature of the machine. One of them, known as a licker-in, was about five feet long, ten inches in diameter, and was elevated a number of feet above the platform on which he slipped. It was this licker-in which it is claimed should have been guarded or protected with a cover. Evidence was given tending to show that such cover was in use in other places:

Although it may have been practicable to cover the licker-in, it conclusively appears that the purpose of such cover was- not to guard employees against accidents, but to prevent the flying of waste into the room from the .material passing through the rollers.

At the ends of the rollers over the platform on which plaintiff fell were cogs, gears, belts and other machinery. There is no contention that such machinery could have been guarded. It appears that there was' a space of fourteen inches between the licker-in and the' outside of the gear by which it was propelled. Plaintiff’s expert witness testified as follows: What I meant by a cover is that I mean that there was along the. sixty inches of the length of the licker-in and feed-rolls a metal construction which prevented, the flying of waste, and nothing could go in there, and there is nothing else that-I intend by what I spoke of as a "cover ; * * * arid the cover that I speak of was not a cover over tho ends of the rolls at all, and nothing to prevent one stumbling from sticking Ms fingers right in; if they went straight they would get in.” Ho accident had .ever occurred by reason -of an employee getting his hand in these rollers. The machinery had been inspected by' the State Factory Inspectors, and no criticism made because of the absence of covers. Clearly, the most dangerous part of the machinery consisted, of the gears and wheels at the ends of the rollers, which could ■ not be guarded. It was only by an unforeseen and unusual occurrence that an employee would- thrust his hand past or over the machinery at the ends of the rollers, as happened in. this instance. An employer is not bound to anticipate every possible contingency. The case is very similar to the case of King v. Reid (124 App. Div. 121), where it was said : “ The situation was apparent and, so far as appears, was perfectly safe for any one who did not fall off the platform into the machine. It seems to me that this occurrence was not one that could have been anticipated, nor could a reasonably prudent person have anticipated that a person would fall into this fly wheel from the platform, or that it was at all necessary to guard the wheel. It was not an occurrence that was at all likely to happen, so that in the ordinary course of business it was necessary to guard against it. All machinery of this kind is liable to cause injury when unexpected and not to be anticipated events occur; but I think a machine is properly guarded when those employed are protected, when using the ordinary methods of operating it.” (See, also, Sitts v. Waiontha Knitting Co., Ltd., 94 App. Div. 38 ; Cobb v. Welcher, 75 Hun, 283.) Inasmuch as there is no evidence that it was practicable to guard the more dangerous portion of the machinery which was nearest to the plaintiff, and inasmuch as it does not appear that the less dangerous part thereof, which was more remote from him and with which he could not come in contact except by reaching over the nearer and more dan-' gerous part, was ever guarded for the purpose of protecting employees, I think the verdict of the jury, based as it is on the failure to guard the machinery, was erroneous.

The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide event.

All concurred, except Chester and Kellogg, JJ., dissenting.

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