
    Charles McManus, an Infant, by Alice McManus, His Guardian ad Litem, Respondent, v. St. Regis Paper Company, Appellant.
    
      Negligence — a verdict at variance with an erroneous charge set aside—injury from exposed cog wheels.— when the master is liable under section 81 of the Labor Law.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that the defendant was a corporation which used in the manufacture of paper a machine fitted with cogs for which a removable iron guard had been furnished; that about six o’clock on the day previous to the accident this guard was removed for the purpose of remedying a defect in the machine; that the defect having been remedied in half an hour the defendant’s superintendent left the room, instructing the machine tender to replace the guard; that, although the replacing could have been easily effected, it was not done by the machine tender or by any one else; that the plaintiff, an employee of the defendant, went to work on the machine at seven o’clock the next morning and about fifteen minutes later his hand became caught in the unguarded cogs and was injured.
    The room in which the machine was located was well lighted and the unguarded cogs were plainly visible, but the plaintiff testified that "he did not see them. The plaintiff was entirely familiar with the machine and had been in the defend; ant’s employ for about six weeks, but during this time the cogs in question had been guarded.
    The case was tried upon the theory that the defendant was liable because of a violation of section 81 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 193), which provides: “All * * * cogs, gearing, * * * ' and machinery of every description shall be properly guarded. No person shall ■ remove or make ineffective any safeguard around or attached to machinery * * * unless for the purpose of immediately making repairs thereto, .and all such safeguards so removed shall be promptly replaced. ’
    The trial court, however, specifically instructed the jury that the defendant incurred no liability predicated upon its failure to furnish the plaintiff a safe place in which to perform his work, or upon its failure to furnish the plaintiff with other or different ways, works or machinery than it did, and that the statutes did not require the defendant to guard or cover the cog wheels in question in any manner different from what it did.
    
      Reid, that a judgment entered upon a verdict in favor of the plaintiff should be reversed, for the reason that such verdict, was not in accordance with the instructions of the trial court however erroneous such instructions might be. Semble, that with respect to the duty to replace the guard on the machine, the" general superintendent stood in the place of the defendant, and that the fact that he assumed to delegate the performance of this duty to another did not operate to relieve the defendant from liability under section 81 of the Labor Law for any injury resulting from the non-performance of such duty.
    Appeal by the defendant, the St. Regis Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Jefferson on the 9th day of January, 1905, upon the verdict of a jury for. $5,400, and also from an order entered in said cleric’s office on the 6th day of January, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced on the 6th day of December, 1902, to recover damages for injuries sustained by the plaintiff, alleged to have been caused solely through the negligence (of the defendant and without negligence or fault on the part of the plaintiff.
    
      Henry Purcell, for the appellant.
    
      N. F. Breen and McCormick & Van Namee, for the respondent.
   McLennan, P. J.:

The facts, so far as material to the questions involved upon this appeal, are not in dispute and may be briefly stated. The defendant is a domestic corporation and at all the times in question was engaged in operating a machine of considerable length and somewhat complicated, for the manufacture of paper. Such machine was comparatively new, complete in all its parts, and in proper repair. The superintendent, night foreman and all the other employees of the defendant who were engaged in operating the machine were in all respects competent to perform their respective duties. On the 31st day of July, 1902, at about half-past seven in the morning, the plaintiff, who was then about seventeen years of age, and in the employ of the defendant, was engaged in operating or looking after a part of the machine, among others, known as the winder, and while so employed his right hand got between two cog wheels which were near or connected with the part of the machine to which he was then giving his immediate attention, and was crushed, which is the injury for which he seeks to recover in this action.

The plaintiff had been in defendant’s employ for about six weeks prior to the accident, was entirely familiar with the machine and the manner of operating it at the place in question, but during all of such time the cogs in question had been entirely covered and were hidden from view by an iron cap or guard which was placed over them and held in position by two bolts onto which nuts were turned. According to the plaintiff’s testimony, during all the time he had worked for the defendant he had never known of such guard being removed, that at the time he supposed the cogs were covered as before, and, therefore, apprehended no danger from their operation. On the day previous to the accident the plaintiff finished his work about six o’clock' f. m. and went to his home. Soon after he left, the machine tender discovered that the winder did not operate properly, and for the purpose of ascertaining and rectifying the difficulty removed the guard and placed it on the floor nearby. A few minutes later defendant’s general superintendent and the night foreman came to the machine and for about half an hour worked with the machine tender at the gears or cogs from which the guard had been removed, for the purpose of rectifying the difficulty. At the end of such time the difficulty was remedied and the machine began to run all right, and so far .as .appeal’s there was no reason why the guard should not then have been replaced. While the guard, was on the floor and after the machine commenced to run properly, ¡the superintendent left the room, instructing the machine tender to put the winder back into the condition in which it had been, and it was the duty of the machine tender, irrespective of such specific instruction, to replace the guard over the cogs, but this duty was not performed by him or any one else. The cogs were left uncovered all night and until after the accident occurred the following morning. There was no difficulty, in replacing the guard ; it weighed only ¡about three pounds. It was only necessary to put it in position, put a bolt through each end and screw a nut on with a wrench, all of which appliances were at hand.

The next morning at about seven o’clock, .the usual time, the plaintiff came to work. He had been engaged about fifteen -minutes, when, in attending to some part of the machine which made it necessary for him to reach over the cogs in question., his attention was attracted by some direction given by the foreman or other employee and he dropped Ids right hand between the unguarded cogs. The room was well lighted, the -cogs were plainly visible, but the plaintiff testifies that he did not see them ; was not looking for them-; in effect, that he supposed they were covered as before, and as they had been during all the time he had been in defendant’s employ engaged in operating the machine.

The complaint in effect alleges that the defendant was negligent because it failed to discharge the duty imposed upon it by the common law; also, in that it violated the provisions of the Employers’ Liability Act (Laws of 1902, chap. 600), and because it violated section 81 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192). That section provides: “ All * * * cogs, gearing, * * * and machinery of every description shall be properly guarded. No person shall remove or make ineffective any safeguard around or attached to machinery * * * unless for the purpose of immediately making repairs thereto, and all such safeguards so removed shall be promptly replaced.”

Upon a former trial of this case, where the plaintiff obtained a verdict, the trial court held that recovery could only be had under the common-law liability of master to servant, and, practically, that the question of defendant’s liability under either of the statutes was not involved. Upon appeal to this court it was in effect held (100 App. Div. 510) that the evidence failed to establish any common-law liability against the defendant for the reason among others that the failure, to replace the guard was a mere detail of the work, and that the neglect of the superintendent to replace it was the neglect of a competent, fellow-servant, for which the defendant was not liable. We adhere to that view and hold that the evidence in this case does not tend to establish that the defendant was guilty of negligence under the common-law rule. Upon the last trial the case was tried upon the theory that the defendant was liable because of a violation of the provisions of the statutes to which attention has been called, and the evidence would seem to indicate quite clearly that at least the defendant failed to discharge the duty imposed upon it by section 81 of the Labor Law, above quoted, in that it failed to cause the guard removed from the cogs in question, with the knowledge of defendant’s superintendent, to be promptly replaced. Such guard was permitted to remain off the machine for eleven or twelve hours without any necessity therefor, or even for convenience. The defendant’s general superintendent knew that the guard was off, and his knowledge in that regard was the knowledge of the defendant. In that respect he stood in the place of the defendant,, and it was clearly his duty to see to it that it was promptly replaced after he knew that the repairs were completed and the necessity for its being off had ceased to exist. Instead of performing such duty he assumed to delegate its performance to the machine tender and it was not performed. The failure to replace the guard under the circumstances, we think, was the failure of the defendant, and that for any injury resulting therefrom the defendant is liable. The statute ought not to be interpreted to mean that when a defendant knows that a guard covering cog wheels or gears which, by the statute, are required to be covered, has been removed, that he' can absolve himself from liability for a failure to replace it by directing some employee to perform that duty. Such interpretation would practically nullify the statute and would not render any additional protection to employees engaged in operating machinery, which was clearly the purpose of the act. It appears, however, that the case was not submitted to the jury upon any such theory. The court charged in answer to the requests of defendant’s counsel that no negligence of the defendant “can be predicated upon the omission of the defendant to furnish the plaintiff a safe place in which to perform his work. * * *

“And that no negligence can be predicated upon the failure of the defendant to furnish the plaintiff with other or different ways, works and machinery than it did on this occasion. * * *

' “ That the statutes of this State did ,not require the defendant as to this plaintiff to guard or cover the cog wheels or gearing differently than it did on the occasion in question. * * *

“ That the statute of this State, known as the Labor Law, applying to factories, which requires the proper guarding of cog wheels and gearings, has no application to the case at bar, and its alleged violation by the defendant cannot be considered by the jury as even tending to establish negligence on the part of the defendant.”

The last is charged, as stated by the learned court, “ because it was not a failure to put the guard on in the first instance in this case. I understand all the machinery was properly guarded.”

After charging in the language above quoted; the learned court said-: “ I submit the case to the jury upon this theory: that although the defendant had guarded this machinery and all that sort of thing, and under this new statute, where it- says by reason of any defect in the condition, that when that guard was left off by some of their employees, then if it was left off and the plaintiff was free from negligence contributing to. his injury and did not assume the risk, then the defendant would be liable if they find that they left it off and it was left off through the negligence of the employer or any person in the service of the employer intrusted by him with the duty of seeing that the. ways, works or machinery were in proper condition. That is the theory in which I let this case go to the jury.’’

, The jury having been told in substance that the defendant incurred no liability predicated upon its failure to furnish the plaintiff a safe place in which to perform his work, or upon its failure to furnish the plaintiff with other or different ways, works or machinery than it did, and that the statutes did not require the defendant to guard or cover the cog wheels in question, in any manner different from what it did, and this court having held that the defendant was not liable under the common law, we fail to appreciate how or upon what theory the jury reached the conclusion which they did. It may be said that if the instructions given to the jury were erroneous they were given pursuant to requests of defendant’s counsel. But the difficulty is that the law as laid down became the law of the case, and for all the purposes of the trial which we are reviewing. Defendant’s counsel had a right to know the ground or grounds upon which a verdict against the defendant might be based, and when the jury were specifically told that the place so furnished by the defendant was safe and that it was not required to furnish other or different ways, works or machinery than it did, and that there was no statute which required it to guard or cover the cog wheels in question so far as this plaintiff is concerned, and that it had incurred no common-law liability by any of its acts or omissions in the premises, naturally defendant’s counsel might feel reasonably contented because such instructions measured the defendant’s liability so far as that trial was concerned, however erroneous they might be.

While there are other expressions in the charge more or less in-conflict with those alluded to, we think defendant’s counsel had a right to assume that the propositions thus specifically and pointedly charged measured the defendant’s liability.

Without intending to indicate that in our opinion the evidence in this case, if believed by a jury, was not sufficient to establish negligence as against the defendant under the provisions of the section of the Labor Law to which attention has been called, or that the evidence is not sufficient to absolve the plaintiff from the charge of contributory negligence or the assumption of risk, nevertheless, in view of the instructions given to the jury by the learned trial court, we think the judgment and order appealed from must be reversed and a new trial granted, with costs to the appellant to abide event.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event, upon questions of law only, the. facts having been examined and no error found therein.  