
    Joseph Staskowski, an Infant, by John Marciniak, His Guardian ad Litem, Appellant, v. Standard Oil Company of New York, Respondent.
    Second Department,
    June 5, 1908.
    Negligence — defective-machine — prima facie case.
    Where in an action for .negligence the plaintiff’s evidence shows that a machine was defective, that he reported the fact to the machinist who later told him he had “fixed” it, and that three days thereafter it again became out of order so that a hammer fell on plaintiff’s hand, while he was removing with a stick material which normally was thrown out automatically, hut which it was customary to so remove when it stuck, a p'ima facie case is made out, and it is error to dismiss the complaint.
    Repair'to the press, was not a detail of the work, but a duty of the master.
    Appeal by the plaintiff, Joseph Staskowski, an infant, by his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of January, 1908, upon the dismissal of the complaint by direction of the court at the. close of the plaintiff’s case upon a trial at the Hew York Trial Term.
    
      A. L. Pincoffs [Edward D. O'Brien with him on the brief], for the appellant.
    
      John Brooks Leavitt, for the respondent.
   Jenks, J.:

The appeal. is by the plaintiff from his dismissal at the close of the case. ' The action is by servant .against master for negligence, and the complaint is inter alia of a defective machine furnished by the master in violation of his obligation to exercise due care to furnish proper appliances. (Benzing v. Steinway & Sons, 101 N. Y. 547.) The servant, testifies that-on the Friday before the accident he noticed that the hamper fell two or three times while his foot was off the treadle ; that he informed the machinist-of the defendarit who thereafter told him that he had'“ fixed ” it, that it was in proper condition and to resume its use. The: servant continued to use the machine for two days and it worked properly. It worked likewise for several hours on the day of the accident, but at a time when the plaintiff with his foot off the treadle was engaged in taking out a certain material from the machine, the hammer cande down automatically upon the table and injured his hand. Normally this material was thrown out from the .machine automatically, but sometimes it. “ stuck,” whereupon the workmen were acensto'med to take a piece of stick or a wire and use it to take out the material. The servant was using a stick at the time of the accident. The sole question which I decide is .whether the plaintiff had made out a prima fatiie case so as to escape dismissal. So far as the question of his contributory negligence is concerned, which was certainly in this case, suffice it to say that at the close of his evidence it did not present a question of law for the court. Répair to this press was not a detail of the work hut was a duty of the master. (Fox v. Le Comte, 2 App. Div. 63; affd. on opinion below, 153 N. Y. 680.) I am of opinion that the learned court erred in that the plaintiff had made out a prima facie case which presented a question for the jury whether the master had discharged his obligation to the servant to exercise due care to furnish a fit and proper machine. I think that Sopherstein v. Bertels (178 Penn. St. 401) was well decided and is precisely in point.

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

Hooker, G-aynor, Rich and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  