
    Frank Havlin, an Infant, Respondent, v. Joseph Krulish, Appellant.
    (City Court of New York, General Term,
    December, 1898.)
    Negligence — Failure of the master to comply with the Factory Act of 1892.
    Defendant maintained in his factory two cog-wheels projecting into a stairway and at one time, protected by a wooden box, through which, however, a hole had been worn by the action of the wheels, and this hole had existed for three weeks; plaintiff, an employee of defendant’s, while passing the wheels, of the existence of which he had no knowledge, in the discharge of his duties, was injured, because the fingers of his left hand, which were about on a level with the hole in the box, came in contact with the cogs and were smashed. Held, under the provisions of Laws of 1892, chap. 673, § 8, that defendant, having failed to properly guard the wheels, was prima facie negligent, and that it was his duty to guard all cogs, belting, etc.
    Appeal from judgment entered upon a verdict rendered in favor of plaintiff for $1,000, and from an order denying a motion for a new trial.
    V. W. Woytisek, for appellant.
    Catlin & Nekarda, for respondent.
   Schuchman, J.

The action is brought to recover damages for personal injury. The evidence adduced at the trial establishes substantially the following facts:

On June 3,1897, the plaintiff, an infant of about sixteen years of age, was employed by the defendant in 'his marble factory, carried on, on the first and second floors of a building on Cherry street, which together with the stairway were hired by defendant for that purpose for the past seven years. There was a yard in front of the building. The entrance to the second floor was by a stairway on the front of the building, at the uptown or north comer thereof. On the right-hand side of the stairs was a partition. About half way up this stairway, on the right side close to the wall, were two large cog-wheels, the teeth of cogs pointing up and down stairs, and the flat side being against the wall.

They were covered by a wooden box, projecting out over the steps eight and one-fourth inches, the lower side of it being four feet eight inches above the step, directly under it. This wooden box or covering at the comer toward the head of the stairs was worn out by friction with the cogs, causing a then existing hole of about four to five inches wide and five to six inches long.

On February 4th, about 5 o’clock, p. m., the infant plaintiff, who was then five feet eight inches tall, earned a marble slab, the top of a wash-basin, of the size of three feet by two feet six inches, and of a weight of thirty to forty pounds, down this stairway, and while descending, the fingers of his left hand, which were about on a level with the hole in the box, came in contact with the cogs and were smashed.

The infant plaintiff testified, that he had not noticed the box or cogs before the accident happened, nor did he know that the hole was there. There was a sharp conflict of evidence as to the fact how long the hole was there. The evidence on plaintiff’s part is, that it was there about three weeks, while that on the part of the defense is, that there was no hole there before June 4th, nor on the 4-th, 5th or 6th of June.

The law (§ 8, chap. 673, Laws of 1892) known as the Factory Act, provides that all cogs, belting, shafting, etc., shall be properly guarded. Knisley v. Pratt, 75 Hun, 326. Failure to comply with this act is prima facie evidence of negligence. McRickard v. Flint, 114 N. T. 222; Freeman v. Glens Falls Paper Hill Co., 61 Hun, 125. It is the duty of a tenant or lessee carrying on any business with machinery to comply with the Factory Act and properly guard cogs, belting, shafting, etc., and to exercise such care and caution in respect to the demised premises, as a prudent man of ordinary intelligence would exercise under' the same or similar circumstances, to keep them safe for persons lawfully using the same. Glassheim v. Printing Co., 13 Misc. Rep. 174; 68 N. Y. St. Repr. 24. If a person, obligated by law to keep premises in a reasonably safe condition, fails to make repairs, after actual or constructive notice, within a reasonable time, it constitutes a factotum of negligence. Thus it was held, where stairs were out of repair for twenty-four hours that the jury might find negligence. Butcher v. Hyde, 10 Misc. Rep. 275. And where an obstruction was left in the street for four or five days (when it is the corporate duty of the city to keep ithe streets free from obstructions), without express notice to the city, that it is chargeable with implied notice, because the authorities of the city, charged with the care of the public streets, ought to have known of the obstruction, and to have caused its removal, and, if ignorant, and their ignorance resulted from the omission of the duty of inspection, and of the degree of diligence which might reasonably be expected, the city is equally chargeable as if express notice had been actually given. Kunz v. City of Troy, 104 N. Y. 344; Todd v. City of Troy, 61 id. 507.

The principles of law governing defendant’s liability herein, depending upon his negligence and the freedom of negligence of plaintiff, have been properly submitted to the jury by the trial judge in his charge. The conflict of evidence has been disposed of by the jury’s verdict.

This verdict is not against the evidence, nor the weight of evidence. The exceptions, in readmission of Exhibit B, and those excluding testimony in regard to the questions, whether ever before any injury was occasioned to any one by said defective covering, or box, and to refusals to requests to charge are without merits.

The charge was ample and proper. Judgment and order appealed from affirmed, with costs.

McCarthy and Olcott, JJ., concur.

Judgment and order affirmed, with costs.  