
    Frances D. Austin, as Administratrix, etc., of Frederick H. Austin, Deceased, Respondent, v. The Fisher Tanning Company, Appellant.
    
      Negligence—injury to a machinist engaged in repairing a machine, from the act of the operator in setting it in motion —liability of their common employer because of the operator's imperfect knowledge of the English language which induced his act —obligation to make a 'rule as to starting machinery under repair.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the intestate was employed as a machinist in the defendant’s tannery and that it was his duty to repair all defective machines; that on the day in question the intestate attempted to repair a fleshing machine operated by one Foote. The fleshing machine was operated by electricity, and when the intestate attempted to repair the machine the power had been turned on,- but the clutch, by which the motion was communicated to the machine, had not been thrown in.
    In the machine was a drum which revolved when the machine was in motion. This drum had an opening in its circumference through which the intestate in the course of his work placed his head and shoulders. At this point he gave some instructions to Foote who was assisting him, and Foote, supposing that he was obeying such instructions, started the machine, and the intestate was struck by the revolving drum and killed. Evidence was given to the effect that soon after the accident the intestate on regaining consciousness said, referring to Foote, “Billy, Billy, I told you to not start the machine.”
    Foote was a Pole and it was claimed that his knowledge of English was so imperfect that he misunderstood the language addressed to him by the intestate. He had operated the machine for a year and a half, during which time the intestate had been a fellow-employee. It was not Foote’s duty to assist in the repairing of the machine, and so far as he did so, it was at the invitation of the intestate.
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed;
    That no negligence on the part of the defendant could be predicated upon its failure to promulgate a rule that the machine in question should not be started . while undergoing repair, as an employer is not obliged to promulgate a rule forbidding his employees from doing an act which would necessarily and obviously result in injury to another employee;
    That Foote’s imperfect knowledge of the English language did not render the defendant liable, as if there was any damage to be apprehended from this source, the situation was ás well known to the intestate as it was to the defendant, and that the intestate, by continuing in the employment with Foote without complaint, and by seeking Foote’s assistance in repairing the machine, assumed the risk arising out of such imperfect knowledge;
    That negligence could not be imputed to the defendant because of Foote’s imperfect knowledge of English for the further reason that the accident occurred through a misunderstanding which might have happened even if Foote had had a perfect knowledge of English.
    Hiscock, J., dissented.
    Appeal by the defendant, The Fisher Tanning Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 9th day of January, 1903, upon the verdict of a jury for $3;000, and also from an order entered in said clerk’s office on the 9th day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      James Metcalf and Clarence M. Bushnell, for the appellant.
    
      Thomas N. Dowd and Thomas L. Newton, for the respondent.
   Stover, J.:

Plaintiff’s intestate died as the result, of an accident which occurred at the defendant’s tannery at the village of Salamanca on November 22, 1900.

The machine upon which the accident occurred was known as a fleshing machine. It consisted of a steel drum, supported upon standards at each end, covered with rubber and wire about one and one-fourth inches thick, about five or six feet in length, four feet" in diameter, with an opening of about one-quarter of its circumference. Through the center of the drum was a shaft to which the drum was attached by arms ; at one end was a drive wheel thirty inches in diameter, two pulley wheels and a motor; above the drum were the knives which, were so close to the drum that when a hide was placed on it they would remove the fleshings from it; this was incased in a box so that the refuse matter would not fly from the machine. The power' used was. electricity; the power was turned on or off the machine at a switch on the wall five or six feet from the back of the machine. The quantity of power was regulated by a lever six or eight inches long just below the switch. The power was put upon the drum by a clutch which was operated by a lever on the right and in front of the dram. The pulley and shafting-would revolve loose until this clutch was thrown in when the drum would revolve toward the operator.

On the morning of the accident the foreman in charge of the beam house found the machine out of order. Foote, the workman who had charge of the operation of the machine in the ordinary operation of fleshing, went to the plaintiff’s intestate and reported that the machine was out of order and deceased came to repair it. The deceased was, and for a year previous had been, the master machinist or general repair man in charge of all the machines, some seventy-five in number, in the defendant’s tannery. The deceased had been in the habit of fixing this machine when out of repair and had frequently fixed it. The deceased upon arrival at the machine went to the rear. At this time the power was on, but the drum Was not revolving, the clutch not having been thrown in.

Up to this point there is practically no dispute as to the occurrence, and it is not disputed that about this time the deceased undertook either the examination or repair of the machine, and'a little later placed his head within the opening in the drum. Foote, the operator in charge, thought Austin told him to start the drum, as it was a little high, the inference being that it was necessary to change the location of the opening so that the repairs could be more conveniently made. Foote went to the front of the machine and operated the lever which threw the clutch in, and the deceased was heard to utter a cry, and was soon after found at the rear of the machine, injured fatally, having been struck by the revolving drum, he having his head and shoulders in the opening at the time the power was turned on.

Foote had been in the employ of the defendant about a year and a half, operating this machine. Plaintiff’s intestate had been in the employ of the defendant during this time,-and was accustomed, to repair this and other machines as they became out of order.. Foote, the operator, was a Pole, and it is claimed on behalf of the-plaintiff that his knowledge of the English language was so imperfect that he was unable to understand directions that were given to-him; that by reason of his imperfect understanding of the language-, he misunderstood the direction given by Austin and started the. machine, causing Austin’s death.

A witness for the plaintiff testified, under objection, that-some-twenty to twenty-five minutes after the accident, and upon regaining consciousness, the deceased said: “ Billy, Billy, I told you to-not start the machine.”

The negligence of the defendant is predicated upon two propositions : First, in failing to use reasonable care to make and enforce-proper and suitable rules for the safety of its employees; and, second, in employing Foote to operate the machine, he being incompetent by reason of his failure to understand the English language.

As to the first proposition, the court was asked to charge: “ That if Austin, knowing that defendant had not made and promulgated, a rule that no machine should be started while it was being repaired,, yet nevertheless continued his employment, that such continuance: in his employment amounted to a consent upon his part to incur the risk to which he was thereby exposed, if any, and dispensed with the duty, if any, of the defendant to make and promulgate such a. rule.”

This was charged, and no exception appears thereto in the record, so that this becomes the law of the case; and under the facts as-they appear the jury must have found upon this proposition against the contention of the plaintiff; or, if otherwise, the finding was unsupported by the evidence. But beyond this we think the danger to one repairing a machine of this kind while in operation is so opea and apparent that a rule for the government of employees in that particular is not called for. As was said in Ehrenfried v. Lackwanna Iron § Steel Company (89 App. Div. 130), it would be simply a rule that an employee should not do an act which would necessarily and obviously do. an injury to another employee; and the master is not bound to promulgate rules under such circumstances.

The other proposition, which the plaintiff has urged with a great deal of force, is that defendant was guilty of negligence in employing Foote, who, by reason of his ignorance of the English language* was unable to understand directions for the operation of the machine: And beyond this comes the consideration of the contributory negligence of the deceased.

The deceased was a machinist, and by all fair. inferences must have known the dangerous character of the work, namely, that with the power turned on the machine the simple operation of the lever would set the drum in revolution, and necessarily injury would result to one whose body was within the opening of the drum. It would have been a very easy matter to have turned the power off entirely, so that the repairs could have been made with greater safety to the mechanic.

We think that the fact that the operator of the machine did not have full control of the English language was not sufficient to render the defendant liable for the death of plaintiff’s intestate. The operator had been in charge of this machine, and so far as the- evidence shows was able to operate it and had operated it for a longtime before the accident.

It was stipulated upon the trial that it was the duty of Austin to repair this machine whenever it was reported to him, or whenever it came to' his attention in any manner. This placed the machine for the time being in the care of Austin, the mechanic, and it was not .part of Foote’s duty, so far as the record appears, to run the machine or control it during the time that Austin was engaged in its repair. Austin had been a fellow-employee of Foote for more than a year; was familiar with the entire situation, including Foote’s lack of knowledge of the English language. With full control of the machine he left the power on, and gave instructions to Foote either to start the machine or not to ¿tart the machine. He thereby took the risk of his own action, and defendant cannot be rendered liable therefor. He for the time being had authority and control over the machine, and could have shut oil the power entirely and made his repairs with safety. He could have said nothing to Foote, but concededly he did say something to him, giving him some .directions as to the power. Foote says he understood him to say to start the machine, while according to the statement admitted in evidence he said not to start the machine. In either event he acted with full knowledge of the situation, and must be held to have assumed the risk which was as apparent knd open to him as to the defendant. If there was danger to be apprehended from the lack of knowledge of the English language on the part of Foote, this lack of knowledge was just as apparent to Austin, and had been known to him just as long as to the defendant, and his continuance in the employment with this servant was an assumption of the risk of any danger growing out of it.

The court was asked to charge: That if Austin knew from his association and work with Foote or otherwise, or should have known of Foote’s unfamiliarity of the English language, but notwithstanding this continued to work with him without complaint, he assumed the risk of injury arising therefrom and the plaintiif cannot recover.” This was refused and an exception duly taken.

There is no evidence anywhere in the case that any complaint had ever been made to the defendant, that Foote was incompetent by reason of his alleged imperfect knowledge of. the English language, and, as indicated above, this imperfection must have been as well known to Austin as to the defendant; and if he, without making any complaint, undertook to have Foote assist him in making repairs, he assumed whatever risk there was in the situation.

Foote’s employment was in the operation of the machine in its •ordinary working, and there is no complaint that he was not competent to perform the duty for which he was employed. It was not his duty to assist in the repairing of the machine, and so far as he did take part in it, it was at the invitation of the deceased, and was no part of the duty for which he was employed by the defendant. It would, appear rather that whatever he did was at the suggestion of the deceased, and in aiding him in the performance of his, the deceased’s, duty.

When Austin began the repair of the machine the control of the power was within his sight and reach at the rear of the machine, and it would seem that ordinary caution would have prompted him to stop the machine entirely before placing himself in a position where he might be injured by its revolution. Why he should' not have done this rather than to rely upon instructions to one who, it is now claimed, could not understand the English language, and whose deficiency in this respect was well known to him (Austin) is without explanation.

It seems that the explanation of this unfortunate accident is that the situation appeared to Foote to be such that it was necessary to-turn the drum in order to get at the spot that needed repairs, and he so understood his instructions. The deceased placed his head within the drum, not expecting that it would revolve, either relying upon Foote’s knowledge -of the situation, or through some miscalculation as to the revolving of the drum, neither of which situations was caused by any negligence which can be imputable to the defendant. Foote knew that the deceased was near the opening, and it is hardly to be conceived that he' would have started the machine had he known that the deceased was in a position of danger. It is an accident which has happened through misunderstanding, brit one which might have happened had Foote had perfect mastery of the English language, and for which the defendant cannot be held liable.

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

All concurred, except Hisoock, J., who dissented only from that part of the decision which places the reversal upon the facts.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event upon questions of law and of fact.  