
    Peter Larsen, Respondent, v. Lackawanna Steel Company, Appellant.
    Fourth Department,
    May 4, 1910.
    Master and servant — negligence — injury from set screw — evidence — incredible testimony.
    Where the foreman of a mill employed for over two years, who was caught and injured by a set screw hpon a shaft, testifies that he had been on the platform by the shaft many times when, there was daylight, both when the shaft was in motion and at rest, and that at such times the set screw was within three feet of his eyes, a subsequent statement that he never saw or observed it is incredible. A finding that he did not know of its presence is against the weight of evidence.
    If plaintiff leaned against the shaft knowing the presence of the set screw, he assumed the risk of injury and was guilty of contributory negligence.
    Appeal by the defendant, the Lackawanna Steel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 17th day of November, 1909, upon the verdict of a jury for $4,750, and also from an order entered in said clerk’s office on the 2d day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    Rogers, Locke cfo Babcock and JEkan Hollister, for the appellant.
    
      Hamilton Wa/rd, for the respondent.
   "Williams, J.:

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

The action is for negligence. Plaintiff was, at the time of the accident, an employee of defendant, and was injured by .being caught by a set screw upon a revolving shaft. It is claimed the failure to guard the set screw, under the circumstances of this case, was negligence on defendant’s part, and that such negligence was the cause of the accident and plaintiff’s injuries.

Very likely the jury were justified in finding-these propositions in favor- of the plaintiff. There was evidence for them, and we should not hold that the verdict on this branch of the case was contrary to the evidence or the weight thereof.

The more serious questions relate to the 'contributory negligence of the plaintiff and his assumption of the risk. Plaintiff’was foreman of the mill where the accident occurred. The shaft was in the open air, twelve or fifteen feet from the ground. The plaintiff was upon a platform just below the'shaft, while it was revolving, and leaned against the shaft and (as the jury found) was caught by the set screw and seriously injured.' •

Now, without going into .an extensive discussion of these questions, I come to the real point that seemed to establish contributory negligence and assumed risk; that is, the knowledge by plaintiff that the set screw was there. If he had such knowledge', then he must have understood the danger of getting'against it, and should have avoided it; and if he disregarded his own safety and voluntarily submitted himself-to the danger, he cannot call upon the defendant'to- compensate him for the injuries received. He assumed the risk and was guilty of contributory negligence, and the verdict of the jury finding for plaintiff upon these issues was contrary to the evidence and the weight thereof.

Plaintiff testified that in his position as foreman he was not called upon to do manual labor, but often did it; that he was to keep things going, and often helped so as not to delay things; that he had been upon .the platform by the shaft and set screw lots of times before the accident to look'at the shaft when there was trouble with ■the belts, and looking to see if anything was loose, and lots of times,.. when anything was loose_ and if anything would run hot or heavy,, he would go up and see if the bearings were oiled, or anything of that kind; that on these occasions the shaft was sometimes still and sometimes in motion ; that he was there lots of times when it was stopped, and then the collar with the s.et screw in. it was within three feet of his eyes, and this was in the.day time. And yet he testified that he never saw or observed' the set screw, did not -know it was there.

Upon this-evidence given by the plaintiff himself without considering any other evidence ■ tending to show he did know of thé set. screw, a verdict finding that he did not know it should not be permitted to stand.

The shaft did not revolve very rapidly, and very likely the set screw could be seen while the shaft was in motion, but it certainly could have been, and was seen by plaintiff when the shaft was standing still. He had been there over two years. He must have known and understood the use of a set screw in a collar on a shaft and that one was there. His denial of knowledge of its presence is incredible, and may almost be said to be false as matter of law.

I, therefore, think the judgment and order should be reversed and a new trial granted.

All concurred.

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