
    Joseph Cohen, Respondent, v. Samuel Lakow, Appellant.
    Second Department,
    February 28, 1913.
    Master and servant—negligence — injury by joiner machine — evidence — contributory negligence.
    In an action under the Employers’ Liability Act to recover for injuries sustained by the plaintiff while operating a joiner machine in defendant’s factory, it appeared that the machine was not defective and that its knives were not unguarded. Plaintiff claimed that he was ignorant of the use of the machine and had no knowledge of the danger incident thereto. Evidence examined, and held, that judgment for the plaintiff must be reversed upon the grounds that there was no proof of negligence of the defendant and that the plaintiff was guilty of contributory negligence as matter of law.
    Hirschberu, J., dissented.
    Appeal by the defendant, Samuel Lakow, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of February, 1912, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 8th day of February, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Joseph M. Proskauer [Frederick P. Graves with him on the brief], for the appellant.
    
      Meier Steinbrink [Frank E. Johnson, Jr., with him on the brief], for the respondent.
   Rich, J.:

This appeal is from a judgment in favor of the plaintiff in an action under the Employers’ Liability Act (Laws of 1902, chap. 600; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14), and likewise from an order denying defendant’s motion for a new trial.

The plaintiff was injured while operating a joiner machine in defendant’s factory. The evidence .was undoubtedly sufficient to require the submission of the question as to whether the defendant was negligent in directing plaintiff to work upon the machine without instructing him as to the method of operating it and of the attendant danger, but there is no proof of any other negligence. The machine was not defective, and its knives were not unguarded. The guard, however, was movable, and when the machine was not in operation it did not usually cover the knives. The custom and proper practice in using the machine was to place the board in position for planing and, after this was done, to place the guard against the side of the board. When this is done the knives are covered by the guard, and the operator is in no danger of injury and the plaintiff could not have been injured if he had followed this custom. It is dangerous to attempt to use the machine without having the guard in place, and there is evidence from which the jury might have found that this danger was or ought to have been known to defendant and his superintending employees. The plaintiff claims that he was ignorant of the use of the machine, and that he had no knowledge of the danger incident to its use, and if this is so it was the duty of the superintendent directing plaintiff to warn him of the danger and to give the necessary instructions as to the safe mode of operation. (Brennan v. Gordon, 118 N. Y. 489; Gates v. State, 128 id. 221; Crown v. Orr, 140 id. 450; Greco v. Pratt Chuck Co., 121 App. Div. 198, 802.) We think, however, that the evidence clearly shows that he knew of the use of the machine and that he was guilty of contributory negligence as matter of law.

There was no defect in the machine, and the judgment must be also reversed because of an error of the learned trial court in submitting to the jury the question as to whether the machine was defective or unguarded. At the close of the plaintiff’s case and again at the close of the evidence defendant requested the court to withdraw from the consideration of the jury so much of the alleged cause of action as charged him with furnishing “ a machine with an improper or defective guard — an unsafe guard.” This request was denied and an exception taken. The court left it for the jury to say whether the defendant was negligent in (1) furnishing a defective machine, and (2) in his failure to instruct the plaintiff as to its use and the manner of its operation. There was no evidence before the court which would justify the submission of the question as to whether the machine was defective, and the judgment must be reversed upon the ground that there is no evidence of negligence upon the part of defendant, and likewise upon the ground that the plaintiff was guilty of contributory negligence as matter of law.

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

Jenks, P. J., Burr and Woodward, JJ., concurred; Hirschberg, J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  