
    William Martin, an Infant, by Hermine Martin, His Guardian ad Litem, Respondent, v. Walker and Williams Manufacturing Company, Appellant.
    Third Department,
    November 13, 1907.
    Master and servant — injury by slipping in pool of oil — unguarded machine — evidence — when violation of Labor Law inadmissible.
    In an action to recover for injuries received by an employee, who-slipped in a pool of oil and thrust his hands into the unguarded rollers of a machine, where the plaintiff does not allege a violation of the Labor Law in leaving the rollers unguarded, but bases the defendant’s negligence upon a- failure to inspect the machine so as to prevent oil from dripping upon the floor, it is error to admit evidence that similar machines were guarded. . ' .
    Such error is not cui-ed by a charge that' although the jury may consider the . fact that the rollers were unguarded, it cannot be taken as a violation of the Labor Law.
    Appeal by the defendant, the Walker and 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 22d day of March, 1907, upon the verdict of a jury for 82,000, and also from an order entered in said clerk’s office on the 26tli day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Andrew J. Nellis, for the appellant.
    
      John Scanlon, for the respondent.
   Kellogg, J.:

In his complaint the plaintiff alleges the -negligence of the defendant in permitting a pool of oil to remain .upon the platform upon which its garnet machine stood, and its negligent failure to inspect said machine so as to prevent the.oil from dropping upon the platform, by reason of which the plaintiff slipped upon the oily surface of the platform, fell into the machine and was severely injured by its rollers.

. Upon the trial, under'the defendant’s objection that no, violation of the Labor Law and no negligence in leaving the rollers unguarded was alleged, plaintiff was permitted to prove that the garnet machine into which lie fell did not have a cover or guard over the rollers. This evidence was permitted upon the ground that it was proper to show the situation surrounding the accident, whether a violation of the Labor Law was alleged or not. Later, over a similar objection and exception, plaintiff was permitted to show that other machines of the same kind in this factory, and in other factories, had the rollers covered or guarded, as tending to show that it was practicable to cover or guard these rollers. It was improper to show that other machines- in this and in other factories were guarded, for it was entirely immaterial under the pleadings whether it was practicable to guard this machine or not. Leaving a pool of oil near an unguarded machine is just as negligent whether it is practicable to guard the machine or not, for the negligence is not in leaving the machine unguarded but in leaving the oil upon the floor where an employee is liable, to slip and be thrown into the unguarded machine. This evidence as to the other machines brought into the case an issue not foreshadowed by the pleadings, and it is impossible to say whether the recovery was based upon negligence in allowing oil to drop upon the floor or in leaving the rollers of the machine uncovered. The question, was squarely raised upon the trial, and if the plaintiff desired to rely upon a violation of the Labor Law, or negligence in- leaving the rollers unguarded, he should have amended his complaint.

At the close of the case the- court informed the jury that they might take into consideration the fact that there was ho cover upon the rollers, bdt not that it was a violation of the Labor Law. This did not cure the error. Irrespective of the Labor Law, the jury may have determined that it was negligence to put the plaintiff at work around an unguarded machine. Plaintiff suffered his serious injury by falling against the rollers while they were in motion, and the evidence was clearly prejudicial.

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

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event. 
      
       See Laws of 1897, chap. 415, § 81, as amd. by Laws of 1904, chap. 291. Since amd. by Laws of 1906, chap. 366.— [Rep.
     