
    Headifen, Administratrix, v. Cooper et al.
    (City Court of Brooklyn — General Term,
    December, 1893.)
    Where the master has provided additional belts for a machine and has delegated the duty of inspection to the man in charge of such machine, the neglect of the latter to make proper inspection, whereby another servant is injured, is the act of a fellow-servant for which the master is not liable.
    Plaintiff’s intestate was fatally injured while in the employ of defendants by the breaking of a belt in use on a planer at which he was a helper. Other belts had been provided by defendants, who delegated the duty of inspection to D., who was in charge of the" machine. It also appeared- from statements of the deceased that he had reported the belt many times. Held, that a nonsuit was properly granted.
    Appeal from judgment entered upon a nonsuit at the close of plaintiffs case.
    
      Dailey, Bell & Crane, for plaintiff (appellant).
    
      Jackson & Burr, for defendants (respondents).
   Clement, Ch. J.

The plaintiff brought this action under the statute for the benefit of the next of kin of Louis Headifen, deceased, who was killed in the planing mill of the defendants, and at the time was in their employ. Headifen, of the age of nineteen years, had worked in the mill for a period of six months, and sustained fatal injuries by the breaking of a belt in use on a planer.

Assuming that the belt was weak and rotten, such fact must have been known to Devlin, who had charge of the machine, and to the deceased. The master had provided other belts, •and had delegated the duty of inspection to Devlin, for whose neglect so to inspect the defendants were not liable. Cregan v. Marston, 126 N. Y. 568. If the belt was defective and not fit for use the defendants relied on Devlin to report its condition, and his acts were those of a fellow-servant of Headifen. If the deceased knew the belt was rotten and unsafe, he ■accepted the service subject to the risk. Sweeney v. Berlin & Jones Co., 101 N. Y. 520. The statement of Headifen before his death, that he had reported it many times, would seem to show that, if the belt was weak, the deceased.knew all about it. The case of Harley v. Buffalo Car Co., 15 N. Y. Supp. 37, is not in point, as the plaintiff in that case “ had been but a few days employed in the mill, and knew nothing of what was necessary to the safety of the machinery.”

The judgment should be affirmed, with costs.

Van Wyck, J., concurs.

■Judgment affirmed, with costs.  