
    George L. Simpson, Resp’t, v. New York Rubber Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    Master and servant—Dan&erotjs machinery—Waiver.
    An employe in a factory cannot waive the protection afforded by chap. 673 of 1892.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      M. II. Hirschberg, for app’lt; William D. Diclcey, for resp’t.
   Cullen, J.

This is an appeal from a judgment for the plaintiff, entered upon the verdict of a jury. 'The action is to recover damages for personal injuries. The plaintiff was in the employ of the defendant, and had worked in its factory for some two years before the occurrence of the accident. On the occasion of that accident, while moving a truck, he slipped and fell, and his hand and arm were caught in some cog gearing, and so injured as to necessitate partial amputation. The action is based upon the statute requiring cogs, gearing, etc., to be properly guarded. Laws-1892, ch, 678. The questions of the negligence of the plaintiff, whether he was properly passing the machinery at the time of the injury, and whether the machinery was properly guarded, were submitted to the jury. The instructions on these questions were correct, and, as we interpret the rather colloquial discussion between the court and counsel at the end of the formal charge, the defendant has no cause of complaint as to them. The serious question in the case is the waiver by the plaintiff of the requirements of the statute. The learned judge was asked to charge that, if the defendant failed to properly guard the shaft and cog wheel, and the plaintiff knew it, and still continued in defendant’s employ, he waived the provision of the statute in that regard, and assumed such obvious risks as were incident to the use of the machinery in that condition. This request and refusal fairly raises the question. The general rule settled by authority is: “A servant accepts the service subject to the risks incident to it, and where, when he enters into the employment, the machinery and implements used in the master’s business are of a certain kind and condition, and the servant knows it, he voluntarily assumes the risk resulting from their use, and can make no claim upon the master to furnish other or different safeguards.” Sweeney v. B. & J. Envelope Co., 101 N. Y. 520. But the question presented in this case is a different one. The state has enacted that certain safeguards shall be had for the securities of employes of the factory. The failure to provide these statutory safeguards is criminal. It is doubtless true that parties can waive statutory provisions for their benefit, and can even make law for themselves which the courts are bound to administer, provided there is no question of public policy involved. In re New York, L. & W. R. Co., 98 N. Y. 447; Sentenis v. Ladew, 140 N. Y. 463; 55 St. Rep. 831. But is there no question of public policy involved here? To our mind there is, and that public policy should induce us to hold, unless a contrary doctrinéis settled by authority, that this statutory protection cannot be waived. Our notion of government has confined state interference with the freedom of individual action within narrow limits, but such interference has never been wholl v prohibited. Experience has shown that in some matters persons must be protected from their own imprudence. If there were to be considered only the interest of the individual in his personal security, the statute would be unnecessary. The end sought to be accomplished could equally well be secured by contract between the employer and the employe. The matter has always been a subject of contract; that is, no law has ever-forbidden employes making the guarding of machinery a condition of their service. Yet such contracts are unknown. If, therefore, assent can dispense with the statutory protection, the subject, for practical purposes, is left in the same condition as it was before the enactment of the statute. But the state has great interest in the protection of its members, and this even of the most utilitarian character. In the case of a inained employee, he and his family are likely to become a public charge. The saméis true of the family of an employee killed. The community would seem to have as much interest in the protection of the life and limbs of a member of it as in the question whether he should pay 8 per cent, or 6 per cent, interest. Yet by no means which human wit can devise can he make a valid contract to pay more than 6 per cent, in this state. The doctrine of waiver or contributory negligence under this statute is but the equivalent of the contention in pari delictu under the usury statute—a claim always repudiated by the courts. We admit that the terms of the usury law differ from those of the statute under consideration. But the present form of the usury law is simply the result of a long strife between the legislature and the courts, the latter trying to' avoid the effect of the legislation—a strife in which the legislature eventually proved victorious. Nor is the legislation under discussion anomalous. At the present time there seems to be a tendency to reaction in the doctrine of noninterference. Within a few years the state has prescribed the prices to be charged for elevating grain in the port of New York by private individuals who possess no franchises nor even special facilities for the business. Yet this legislation is valid both by the court of appeals and by the supreme court of the United States. People v. Budd, 117 N. Y. 1; 26 St. Rep. 533; id., 143 U. S. 517. The claim that the question is settled by authority adversely to these views is based on the case of Freeman v. Glens Falls Paper Mill Co., 70 Hun, 530; 53 St. Rep. 786; affirmed without opinion, court of appeals April, 1894, 60 St. Rep. 865. The effect of such affirmance is stated by Judge Finch to make the court “responsible only for the point decided, not guarantors of the reasons given or opinions expressed.” Rogers v. Decker, 131 N. Y. 490; 43 St. Rep. 781. In the case cited from Iluti the action was for negligence, and not based on the statute. The question here was, therefore, not necessarily involved. So far as we have any intimations from the court of appeals on the question, they are adverse to the contention that the statute can be waived. In White v. Witteman Lithographic Co., 131 N. Y. 631; 43 St. Rep. 312, referring to this statute, Judge Earl says: “It is not always true that the absence of guards about the machinery in such a case, provided the boy knew it, can have any bearing on the liability of the employer.” In Purdy v. R. W. & O. R. R. Co., 125 N. Y. 209; 34 St. Rep. 737, an agreement in advance, releasing the defendant (master) from damage for every cause, was held void, as without consideration; the simple continuance of employment being held insufficient to support it. The distinguished judge who wrote the opinion intimated grave doubts whether such an agreement was not void as against public policy. That view is the one uniformly adopted at circuit in this district, so far as we know. The same public policy which would render such an agreement void would seem also to avoid an agreement to waive the protection of the statute here under consideration. The judgment appealed from, and. order denying new trial, should be affirmed, with costs.

Dykman, J., concurs in the result.

Brown, P. J.

(concurring).'—J concur in the affirmance of the judgment in this case, but I do not now agree to the proposition that an employee cannot waive the provisions of the statute which requires owners of manufacturing establishments to properly guard all machinery, so far as the statute may be treated as having been enacted for the employe’s benefit and protection. Whether the plaintiff had waived the benefit of the statute was, upon the trial, treated by the court and counsel as a question of law. No request was made to have the question of waiver submitted to the jury. It is true the court refused to charge that, if the plaintiff waived the provision of the statute, he could not recover; but as it had correctly ruled that there was no waiver in law, and as there was no request to submit the question to the jury, there was no error in its refusal to • charge as requested-The rule .applied by Justice Cullen excludes waiver by express stipulation as well as that arising from the continued use by the employee of improperly guarded machinery. It is not raised in this case by any appropriate exception, and, while it may be that the views expressed are correct, I prefer to withhold my opinion until the question is directly presented, and has been fully argued. The ruling of the court that the plaintiff could not, upon the facts presented, be deemed to have waived the benefit of the statute, is directly sustained by Knisley v. Pratt, 75 Hun, 323; 58 St. Rep. 213; and Freeman v. Glens Falls Paper Mill Co., 61 Hun, 125; 39 St. Rep. 621, and is in harmony with the remarks of Judge Earl in White v. Witteman Lithographic Co., 131 N. Y. 631; 43 St. Rep. 312. There is nothing in the second report of Freeman’s Case, 70, Hun, 530; 53 St. Rep. 786; affirmed in court of. appeals without opinion in April, 1894, 60 St. Rep. 865, that necessarily conflicts with these authorities. Upon the facts found by the jury upon the second trial the plaintiff was guilty of contributory negligence, and, as the judgment is sustained by that fact, we cannot assume that the court of appeals approved of the views expressed in the general term opinion. The judgment must be affirmed.  