
    Edgar A. Campbell, Respondent, v. Kertscher & Company, Appellant.
    Third Department,
    September 28, 1911.
    Master and servant — negligence — injury by planing machine — guard •— requirements of Labor Law.
    Notwithstanding section 81 of the Labor Law requires certain machinery ' to be properly guarded, such machinery may be so located that, as a matter of law, no guard is required. In other eases the necessity for guarding and the sufficiency of a guard are questions of fact for the jury, and if their verdict is against the weight of evidence it should be set aside.
    A master is not required to guard machinery in such a way that an accident cannot possibly happen. ,
    It is only against such accidents a,s might reasonably be expected to occur that he is bound to guard even the machinery enumerated in the Labor Law. .
    Evidence in an action by a servant to recover of his master for injuries sustained by having his hand caught in the feed roller of a planing machine, examined, and held, that a verdict in plaintiff’s favor based z upon a finding by the jury that the machinery was insufficiently guarded should be set aside as against the weight of evidence.
    Betts, J., dissented.
    Appeal by the defendant, Kertscher & Company, from a judgment of the -Supreme Court in favor of .the plaintiff, entered in the office of the clerk of the county of Chemung on the 10th day of March, 19.10, upon the verdict of a jury for $12,000 (which was reduced by stipulation to $Y,0Q0); also from an order entered in said clerk’s officé On the 1th day Of February, 1911, denying the defendant’s motion for a new trial upon the making of the stipulated reduction in the amount óf the judgment; also from an order made at the Chemung Special Term and entered in said clerk’s office on the 20th day of June, 1911, denying the defendant’s motion for a new trial on the ground of newly-discovered evidence, and also from that part of an order entered on the 26th day of June, 1911," which denied the same motion.
    
      Alexander C. Eustace, for the appellant.
    
      William B. Matterson, for the respondent.
   Houghton, J.:

For some months the plaintiff had been employed by the defendant in running a planing machine in its factory. The machine had a movable table upon which the lumber to be planed rested, and which could be raised or lowered depending upon the thickness of the lumber to be planed. When the machine was set for lumber one inch thick or less, the top of this table was about two and .three-fourths feet from «the floor. The lumber was inserted between the feed rollers, which carried it to and across the planing knives, which were situated some inches, back of the rollers. Between the feed rollers • and the knives was a stationary plate known as a chip breaker. The feed rollers were made somewhat flexible by a system of weights which enabled them to grasp material varying slightly in thickness. These rollers were twenty-three inches from the front of the table and were protected by a half inch iron hood, the outer edge of which was six inches from the center • of the rollers. When the table was moved up so that these rollers were tight together the lower front edge of this hood was two inches from the table. WTien the table was adjusted for the planing of lumber of any thickness the thickness of the lumber made this opening so much more. On the day of the accident to the plaintiff the table was adjusted for the planing of material five-eighths of an inch thickj and this opening was, therefore, two and five-eighths inches wide, extending across the table, and the rollers were a little less than five-eighths of an inch apart and six inches back of the guard.

In some way the plaintiff got his hand in this opening of two and five-eighths inches back far enough to have his fingers caught between the rollers, drawing his hand and arm in up nearly to the elbow, crushing them between the rollers and breaking his arm in several places as it was bent up between the rollers and chip breaker.

The plaintiff claims that he slipped amongst shavings on the floor, and in endeavoring to save himself from falling involuntarily thrust his hand into the machine. The defendant insists that the accident could not have happened in that way, and ' that the plaintiff must have heen engaged in carelessly brushing the shavings off of the machine.

There was proof that on some similar machines operated by the defendant, and as it was claimed on this machine as originally set up, there was a two-inch plate one and three-eighths inches in front of the hood, and about on a level with it, running straight across the machine. The machine on the day of the accident had a two-inch plate running across it, but it was curved upward so that it did not come down as low and as near the table as it would have done had it run straight across, thus leaving the hood six inches from the center of the rollers as the only guard. .

The ground upon which the plaintiff recovered was-that this hood guard of six inches was insufficient, and that the defendant was negligent in changing or in not having a straight bar across the front of the machine, which would have extended the guard out three and three-eighths inches further toward the front and away from the center of the. rollers.

If it be assumed that the accident happened in the manner described by the plaintiff, and that his fall was the proximate cause of the injury and was caused by defendant’s negligence,' still we are of opinion that the verdict' of the jury that the ■rollers were insufficiently guarded is against the weight of evidence and must be set aside.

Notwithstanding the fact that section 81 of the Labor Law (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], as amd. by Laws of 1906, chap. 366) requires that certain machinery shall be properly guarded, the machinery may be so located and the situation may be such that as matter of. law no guard is required. (Wynkoop v. Ludlow Valve Mfg. Co., 196 N. Y. 324.) In other cases the necessity for guarding and the sufficiency of the guard are questions of fact to be passed upon'by a jury (Glens Falls P. C. Co. v. Travelers’ Ins. Co., 162 N. Y. 399; Walker v. Newton Falls Paper Co., 99 App. Div. 47), and if their verdict be against the weight of evidence it must be set aside like a verdict upon any other question, (Kimmerle v. Carey Printing Co., 144 App. Div. 714.)

In the present case the feed rollers were guarded by the hood six inches from their center, ■ and as demonstrated by the accident to the plaintiff, even if caiight in the rollers, his hand cotild not come in contact with the planing knives. It was only when the rollers were set for the thin material being worked that they would be close enough together to catch and crush a man’s hand and arm. The hole into which the plaintiff thrust his hand guarded six inches from the rollers was only two and five-eighths inches in width. Had it chanced that the machine had been set for two-inch or three-inch or wider material, the opening between the rollers would have been such that his hand could not have been caught even if he had thrust it between them.

.A master is not required to guard, machinery in such a way that an accident cannot possibly happen. It is only against such accidents that might reasonably be expected to occur that he is bound to guard even the machinery enumerated in the statute. (Wynkoop v. Ludlow Valve Mfg. Co., supra.)

The office of the straight bar across the machine, because of the absence of which the plaintiff complains, was not primarily to guard against accidents, but to protect the machine from injury while being fed with lumber. The hood was- strong enough to answer the same purpose. Had a straight bar been across the machine, doubtless the accident to the plaintiff would not have happened; but the finding of the jury that the guard that remained in the form of the hood was insufficient was against all the evidence and should be set aside.

Since the appeal from the judgment was argued, the defendant made á motion for a new -trial at Special Term, on the ground of newly-discovered evidence, which was denied, and an appeal from that order is considered herewith.

.The motion was properly denied because the defendant did not show sufficient excuse for not discovering the evidence before the trial. That order must be affirmed, with ten dollars costs and disbursements to respondent.

The judgment and order denying motion for a new trial upon the minutes of the court must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Betts, J., dissenting.

Order denying motion for new trial on newly-discovered ' evidence affirmed, with ten dollars- costs and disbursements to-respondent.

Judgment and ordér denying motion for á new trial upon the minutes reversed and new trial granted, with costs to appellant to abide event.  