
    Joseph Cmielewski, Respondent, v. The Mollenhauer Sugar Refining Company, Appellant.
    
      Negligence — risks of the employment — knowledge and, notice thereof.
    
    An employee in a sugar refinery, who had for nineteen or twenty days been engaged in wheeling sugar to a grating consisting of parallel iron bars four and one-quarter inches apart, and which he knew covered machinery (although he testified that he did not know how far below the grating such machinery was), was set at work emptying the contents of certain bags upon the grating, and soon afterward, while emptying a bag, took hold of an adjacent elevator, from which his hand slipped, and as he put his foot forward to save himself he stepped through the grating, where his leg was cut and crushed in the machinery.
    
      Held, that the employee, under the circumstances, had assumed the risk of the employment;
    That his employer was not chargeable with negligence because of its not having warned the employee of a risk, with which he was already sufficiently acquainted, to put him upon his guard against it.
    . Appeal by the defendant, The Mollenhauer Sugar Refining Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of April, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 23d day of April, 1896, denying the defendant’s motion for a new trial- made upon the minutes.
    
      Francis Farquhar and J. C. Thomson, for the appellant.
    
      William M. Mullen, for the respondent.
   Willard Bartlett, J.:

The plaintiff, a laborer in the employment of the defendant, lost his right leg by falling into a sugar crusher in the defendant’s refinery in the city of Brooklyn, and he has brought this action to recover damages for the injury thus sustained. The only question on which the case went to the jury in relation to the alleged negligence of the defendant was whether, if the machine was dangerous, the defendant neglected any duty which it owed to the plaintiff in respect to giving him proper warning or instruction before he went to work emptying bags of sugar upon the grating which was over the crusher.

This grating consisted of seven parallel iron bars four' and a quarter indies apart, and was three feet four inches long and two feet six inches wide. About a foot underneath it was the crusher, which consisted of five rollers with projecting and interlocking pins. In the process of crushing sugar, at the time of the accident, three men, one of whom was the plaintiff, were engaged on the platform about the grating in emptying the contents of bags as these were trucked up to the place where they were at work.. The sugar, as the bags were opened, went down through the grating. The plaintiff had previously wheeled sugar up to the grating for nineteen or twenty days, but he had not woi'ked at emptying sugar bags until the day he was hurt. On that day he- was employed at this work ten or fifteen minutes before noon, and resumed it after dinner. In emptying the first bag which' was taken up after his return to the platform the plaintiff supported himself in part by holding on to the corner of the adjacent elevator with his left hand. His hand slipped, he put his foot forward to save, himself, stepped into and through the grating, and his leg was caught and crushed in the machinery beneath.

It is plain from the plaintiff’s own testimony that the immediate occurrence which resulted in this unfortunate and serious injury was an accident pure and simple, for which the defendant is in no wise responsible unless it can be made to appear that the plaintiff, by reason of the defendant’s omission to warn or notify him of the dangerous character of the sugar crusher, was led to undertake the work of emptying sugar there when he would otherwise have refused, or was led to exercise less care in keeping off the grating than he would otherwise have shown.

That the plaintiff knew just how the grating was constructed is not open to question. He had been wheeling sugar up to it for nearly three weeks, and had full opportunity to see it then and subsequently, when he began emptying the sugar upon it, so that he could readily perceive the arrangement of the bars, and how wide they were apart. There was no necessity for the defendant to warn him that if he stepped upon the grating his foot and leg would probably go through, as this was evident to the most cursory inspection. The plaintiff knew also that there was machinery under the grating, although he says he did not know how far below it was. “ When I first commenced to work there,” lie testified, “ the workingmen had said there was some kind of machinery, but what kind I did not know. I had no idea at all how far below the grating the machinery was; ” and in another part of his testimony he said, in answer to the court: The men told me that there was machinery there to convey sugar to the elevator, but- what kind of machinery or what it was I didn’t know, and they did not explain to me.” Subsequently, when recalled, and asked what he supposed the sugar was dumped through the grating for, he answered : “ All that I knew was that they threw it in there, and others had said that that sugar goes upstairs in some manner.”

It is contended in behalf of the defendant that the evidence for the plaintiff shows that he was so well informed of whatever danger there was in working at the grating as to dispense with the necessity of any further notice or warning by his employer ; and it seems to me that the record justifies this contention. Knowing the situation and character of the grating, and knowing that there was machinery beneath it, which might be only a few inches below, the plaintiff, if he gave the slightest thought to the matter at all, must have been aware that the grating was a dangerous thing to step upon. Under the circumstances he was as fully warned as he could have been if the defendant’s foreman had said to him : “ Take care not to step or fall upon the grating. There is machinery underneath and it is dangerous.” It could hardly be held that such a caution would not hav.e been sufficient. I am satisfied that the plaintiff knew that he would he likely to suffer injury if his foot went through the bars of the grating, and, therefore, that he could not safely step upon it. Going to work there and remaining at work there with this knowledge, he assumed the risk of the employment, and it is impossible to see how the defendant is chargeable with negligence for not warning him of a danger with which he was already sufficiently acquainted to put him upon Lis guard against it. The accident was due to the slipping of the plaintiff’s hand where he had hold of the neighboring elevator, and, so far as the defendant was concerned; seems to have been inevitable, like the accident under consideration in Buckley v. Gutta Pereha, etc., Co. (113 N. Y. 540).

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

All concurred.

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