
    Peter Hartwig, Resp’t, v. The Bay State Shoe & Leather Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 20, 1889.)
    
    
      iSTEeuGEXCE—Contributory.
    
    Plaintiff was a convict in the Kings county- penitentiary, and was injured while using a machine furnished by defendant, who had hired the services of the convicts. Held, that he was guilty of contributory negligence in attempting to adjust the mold while the press was in motion, and also in putting his finger on top of the mold instead of its side when attempting to adjust it, and was not entitled to recover.
    Appeal from a judgment of the general term of the second judicial department, affirming a verdict in favor of the plaintiff "entered on a verdict, and affirming an order denying a motion for .a new trial made on the minutes.
    Plaintiff was a convict in the Kings county penitentiary, and was farmed out with other convicts to _ defendant to be employed in making boots and shoes. While using one .of the machines, furnished by defendant, designed to mold the soles of shoes, he was injured. The machine had a roller which was essential to its proper working. This roller was worn out.
    It was not round, and in consequence the stem was forced up Before it should be. , ,
    'The convict was doing his work at the machine when the roller slipped and the machine became liable to close. The mold went out of place from the clips of the roller. He attempted to replace it and the machine suddenly closed and smashed his finger. The evidence was that the machine gave notice of the disorder before it closed.
    
      W. C. Beecher, for app’lt; Charles J. Patterson, for resp’t.
    
      
       Reversing 6 N. Y. State Rep., 712.
    
   Follett, Ch. J.

The plaintiff was negligent in attempting to .adjust the mold while the press was in motion, and also in putting the finger which was injured on the top of the mold instead of its side when attempting to adjust it. Each of these acts contributed to the injury and the trial court erred in refusing the defendant’s motion for a nonsuit.

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

Potter, Vann and Parker, JJ., concur. Brown, J., not sitting. Bradley and Haight, JJ., not voting.  