
    Jack Shaw, an Infant, by Aaron Shaw, his Guardian ad Litem, Respondent, v. The Union Bag and Paper Company, Appellant.
    
      The provision, for the “protection of employees operating maehinei'y," in the Labor-Law — it does not apply to the case of one aiding in painting the machinery.
    
    In an action to recover damages for personal injuries, it appeared that the plaintiff, who was a man about twenty years of age, had been employed, by the defendant to assist in installing new shafting and other improvements in the defendant’s mill; that, in the course of the work, a shaft had been hung some twelve feet above the floor, and that an unguarded set screw projected from the collar of such shaft for a distance of about three-quarters of an inch; that, on the day of the accident the plaintiff was directed by the defendant’s foreman to go upon a small staging, which had been suspended about four feet below the shaft, and hold a paint pail for another employee who was painting some beams that were directly above the shaft, which was then revolving at about sixty revolutions a minute; that while holding the pail the plaintiff’s garments, were caught by the head of the set screw and he was whirled about the shaft and injured, The plaintiff claimed that he was not notified of the existence of the set screw when he was sent to work near the shaft.
    
      Held, that section 81 of the Labor Law (Laws of 1.897, chap. 415), which is entitled “Protection of employees operating machinery,” and which imposes upon the owner or person .in charge of a factory the duty of guarding the machinery with respect to those engaged in work requiring its assistance, did not apply to the situation, and that it was error for the court to charge that such section had any bearing upon the question of the defendant’s negligence.
    Chase, J., dissented.
    
      Semble, that the real question for the jury was whether it was an imprudent and negligent act to send the plaintiff upon the staging while the shaft, with its; unguarded set screw, was in motion.
    Appeal by tbe defendant, The Union Bag and Paper Company,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 4th day of June, 1902, upon the verdict of a jury for $2,000 and also from an order entered in said clerk’s office on the 10th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    Section 81 of chapter 415 of the Laws of 1897, which is referred to in the opinion, provides as follows :
    “ Protection of employes operating machinery.— The owner or person in charge of a factory where machinery is used shall provide, in the discretion of the factory inspector, belt-shifters or other mechanical contrivances for the purpose of throwing on or off belts or pulleys. Whenever practicable, all machinery shall be provided with loose pulleys. All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery of every description shall be properly guarded. No person shall remove or make ineffective any safeguard around or attached to machinery, vats or pans while the same are in use, unless for the purpose of immediately making repairs thereto, and all such safeguards so removed shall be promptly replaced. Exhaust fans of sufficient power shall be provided for the purpose of carrying off dust from emery wheels, grindstones and other machinery creating dust. If a machine or any part thereof is in a dangerous condition, or is not properly guarded, the use thereof may be prohibited by the factory inspector, and a notice to that effect shall be attached thereto. Such notice shall not be removed until the machine is made safe and the required safeguards are provided ; and in the meantime such unsafe or dangerous machinery shall not be used. When in the opinion of the factory inspector, it is necessary, the halls leading to workrooms shall be properly lighted. No male person under eighteen years of age or woman under twenty-one shall be permitted or directed to clean machinery while in motion.”
    The plaintiff, a young man of about twenty years of age, was at work with others for the defendant, engaged in putting up new shafting and other improvements in its mill. His uncle was their foreman and the one who hired him, and who directed him as to what particular work he should do. On the 11th of April, 1901, while so engaged he was directed by his uncle to go upon a small staging that hung suspended under a countershaft, and hold a paint pail for one Van Avery, who was painting some beams that were directly over the shaft. The shaft was then revolving at about sixty revolutions a minute. While so holding the pail, his garments were caught by the .head of a set screw that stood out about three-fourths of an inch from the collar that it fastened to the. shaft, and he was whirled about the shaft and injured. He brings this action to recover for the injuries so sustained, claiming that it: was negligence on' the defendant’s part to leave the head of the set screw so exposed and . to put him at work so near it without warning him of its existence. ■ The jury rendered a verdict in his favor for $2,000, and from the judgment entered thereon, and an ■Order denying a motion for a new trial, this appeal is taken.-
    
      Edgar T. Brackett, for the appellant.
    
      T. F. Hamilton, for the respondent.
   Parker, P. J.:

Whether a cause of action for negligence, as regulated by the common-law rules concerning the relations between master and servant, was made out against this defendant we need, not inquire upon this appeal, for I am of the opinion that the trial court erred in instructing the jury concerning the- “Factory Act,” so called, and its application to this case.

. Referring to that act, the trial court stated to the jury that it "provides a law which defines the duties of the employer, so that-where a charge of negligence is made that law may assist a court and á jury in solving the main question as to whether the accident occurred on account- of. the negligence of the employer.” The judge then read to them section 81 of chapter 415 of the Laws of. 1897, and after analyzing it somewhat, practically told them that if the plaintiff went upon the platform as a mere volunteer, he was not; within the shelter or protection of that act; but if he was sent there by his uncle to do the work of the defendant, then he came within the protection of the law, whether it be the ordinary common law, or - the statute, so far as the statute does throw around him'any protection..

There was considerably more said in this connection, explanatory of the law, but taken all together I am of the opinion that the. jury may very well have understood that, if the plaintiff was sent there to do his work and did not go voluntarily, it was the duty of the defendant, by reason of this statute, to have properly guarded the set screw in question.

• The shaft and set screw were hung some twelve feet above the floor and the staging was hung some four feet below it. Thus the •danger of contact with it was entirely removed from all employees, except those who should go upon the staging. Evidently it was not' so located that those employed in operating the machinery would come- in contact with it, and evidently the plaintiff was not one so employed. Does the act in question define the duties of an employer towards an employee under such conditions ? I think not. As stated in the act, it is for the protection of employes operating machinery.” That is, those whose duties require them to work about machinery in motion ; those who cannot do their work except when assisted by such - motion, and, therefore, must work.in the midst of it. Clearly, the work of constructing this new workroom, of hanging this new shafting and painting the timbers on which it hung, could and possibly should have been done without the shaft being in motion, and no special statute was required to protect the workmen so employed. The defendant might well have understood that no special care or duty was imposed upon it with reference to such employees by the statute in question, and that the common-law rule would furnish the full measure of its liability to its employees under such circumstances, and I think that the jury should have been instructed to that effect.

" The real question for the jury was whether, in their judgment, it was an imprudent and negligent act to send the plaintiff upon that platform to assist the painter while the shaft with its unguarded screwhead was in motion. By the charge there was woven into that question the suggestion that the statute required such screwhead to be properly protected, and that negligence might be predicated upon the defendant’s failure to obey that requirement. But for such a situation as here presented the statute was not needed and does not apply. The cases of Foster v. International Paper Co. (71 App. Div. 47, 53) and Glens Falls Portland Cement Co. v. Travelers' Ins. Co. (162 N. Y. 399) are authorities fending to sustain this view.

For this error in the charge this judgment must be reversed and a new trial granted.

All concurred, except Chase, J., dissenting.

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