
    Elizabeth Hubbell, as Administratrix, etc., of Wilmont Hubbell, Deceased, Appellant, v. Pioneer Paper Company, Respondent.
    Third Department,
    November 15, 1911.
    Master and servant — negligence — employee killed by striking an unguarded belt — when not a volunteer.
    Where an employee of a paper mill had occasion to enter a pit in the floor of the mill for the purpose of examining the mill machinery, and the floor of the pit was covered with two feet of water, and extending across the pit were two steam pipes aiid an unguarded belt, one of the steam pipes being located about four feet from the bottom of the pit and the other about five feet from the, bottom of the pit, and the belt being located about five feet six inches above the lower pipe, it cannot foe said, as matter of law, that the employee was negligent in trying to keep off the pit floor by standing upon the lower steam pipe with the result that his head came in contact with the unguarded belt, or that the employer was not negligent in failing to guard the belt, pursuant to section 81 of the Labor Law.
    Evidence examined, and held, not to establish, as matter of law, that the employee who went into the pit was a mere volunteer having no Business there.
    Appeal by the plaintiff, Elizabeth Hubbell, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 26th day of May, 1911, upon'the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Saratoga Trial Term. .
    This is an action by a personal representative to recover damages for the death of her husband. Plaintiff’s intestate had worked for defendant in its paper mill for some eight years, most of this time as general helper about the mill machinery, but at the time of his death and for two weeks prior thereto as machine tender. In the process of manufacturing paper the raw material passes into beaters, where it is ground or cut up, and from thence down to what is known as the beater-room chest under the floor of the beater room. ■ From this chest extends a box or spout to a pump whiph forces the stock to another beating machine called the Joidan, from which the stock finally reaches the particular machine which was in charge of deceased at the time of the accident. The beater-chest spout leading to the pump contains a gate about a foot square, which cannot be raised by hand, but is raised or lowered by means of an iron bar. When the gate is down the stock cannot flow to the pump. The beater-chest spout and the pump are situated in a pit, some eight or ten feet deep, under the floor of the beater room, and access to the pit is through a small hole in the floor of the beater room, which hole is always open. The workmen enter the pit by letting themselves down through the floor to a certain wall some two and one-half feet from the chest. Across the spout run two pipes horizontally, the lower one about four feet from the bottom of the pit, and the other one about a foot higher. The pit is some twelve feet wide by thirty or forty feet long. Running through or across it at one point directly over the spout gate is the main belt of the mill, twenty-four inches wide, and fastened tógether with plates, from which bolts or fastenings project about one-quarter inch. The belt in motion makes some noise, but this is not especially noticeable when the machinery above is running. Deceased had. been in this pit prior to the accident, and others had been there on different occasions. The pump had formerly been located on' the floor above, but had been placed in the pit about six months before the accident.'
    On February 6, 1911, the day of the accident, the pump had stopped, and one Huber, the man in charge of the beater room, had spent, several hours with two helpers in the pit working over the pump. Between eight and nine o’clock that night-deceased, observing that the stock for his machine was very low, came into the beater room and asked Huber what was the matter with the pump, to which Huber replied that the pump was all right, but that the spout was clogged. Deceased tried to start the pump, but could not, and then asked Huber if he was sure the gate was up. Huber assured him that it was, but deceased said, “Let’s go down and be sure it is up.” Thereupon both of them went down, Huber taking a hand lamp, At this time there was about two and one-half feet of paper stock and water on the center of the floor of the pit, and the gate was twelve or eighteen inches under water. It seems that the floor of the pit was frequently or usually wet, especially in the hollow center, although it does not appear what was the usual depth of the water. Deceased was on the lower pipe mentioned, whether standing upon or leaning over it does not clearly appear from the testimony. He had just reached his arm down under the water and found out and told Huber that the gate was up, and Huber had taken up the lamp and begun to return when he heard deceased fall, and found him lying partly in the water of the pit, his skull having been fractured by coming in contact with the belt fastenings, as evidenced by blood and hair on the belt bolts, and he died the day following. Deceased was about five feet ten inches tall, and the lower pipe was about five feet six inches from the belt.
    Notice was served upon defendant under the provision of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36] § 201, as amd. by Laws of 1910, chap. 352).
    
      Butler & Kilmer [W. P. Butler of counsel], for the appellant.
    
      Rockwood, McKnight & McKelvey [Nash Rockwood and L. B. McKelvey of counsel], for the respondent.
   Smith, P. J.:

Appellant’s principal contention herein is that the accident in question was the result of defendant’s negligence in failing properly to guard this belt, pursuant to section 81 of the Labor Law (as amd. by Laws of 1909, chap. 299, and Laws of 1910, chap. 106). On the other hand, respondent claims that the belt was so high above the floor of the pit that it could not reasonably be expected to be a source of danger, and that, therefore, section 81 does not apply, citing Dillon v. National Coal Tar Co. (181 N. Y. 215) and Wynkoop v. Ludlow Valve Mfg. Co. (196 id. 324). We think, however, that the principles laid down in these cases do not apply to the facts of the case at bar. This pit, especially since the placing of the stock pump there, was clearly a place wherein employees at least occasionally had to be to look after the mill machinery and appliances under their charge. If the floor of the pit had been dry and convenient access thereto had been provided, a different situation would be presented. Upon such a state of facts the possibility of one coming in contact with the belt by standing on the pipe above the • spout might be under the authorities too remote to require the guarding of the belt. But such was not the situation as disclosed by the evidence. With over two feet of water and paper stock covering the pit floor, where was the gate, so that. the gate itself was under water, it cannot be held negligence as matter of law for employees to try to keep off the pit floor, even if they had to step or support themselves on this pipe or spout above. Nor do we think the defendant is excused in this respect as matter of law by some evidence in the case that it had provided rubber boots for use in this pit and ladders for going down. There is no evidence that the use of the ladder would have obviated the necessity or convenience of getting on the pipe to open the gate, and the evidence is at least uncertain as to whether there were any boots at hand at the time, the man in charge of the beater room saying that he did not know, but did not think the boots were there. . But whatever may have been the fact, it was apparently not the custom to use them. We accordingly think it was a question of fact for 'the jury as to whether under all the circumstances defendant was negligent in failing to guard this belt.

Respondent further claims that deceased was a mere volunteer at the time of his death; that he was a machine tender only, and consequently had no business in the pit at this time. There is no evidence in the dase exactly defining the duties of deceased, but the evidence as to what he actually did shows clearly that even subsequent to the time he became machine tender he did other work about the mill in connection with repairs. Furthermore, it appeared to be customary for him if there was trouble in the beater room and his stock was getting low so that he would have to shut his machine down to go to the beater room to help locate the trouble. On all such occasions, and particularly at the time of the accident, in view of the fact that his machine was dependent for its supply of material upon the product of the beater room, and that a shutdown there would result in his machine running out of material, we think it cannot be said as matter of law that he was acting outside of. his duties, especially when it is considered that he had for years. acted ás a general helper about the machinery, and so must have been more or less familiar with it all.

The judgment of nonsuit and for costs should he reversed and a new trial granted, with, costs to abide the event.

All concurred.

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