
    Eugene Cullen, an infant, by Owen Cullen, his Guardian ad litem, Resp’t, v. National Sheet Metal Roofing Company, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 26, 1889.)
    
    Master and servant—Negligence—Contributory—When apprised op danger—Risk taken by employee.
    Where in an action to recove! for personal injuries, the plaintiff was working a stamping press used for preparing tin plates for roofing; the press had two dies, an upper and a lower one. The lower one was immovable, the upper one having a vertical stroke. When the upper die was raised to admit a plate, it was stopped and held in position by a clutch, which was held in place by a spiral spring, the action of which was controlled by the foot of the operative, applied to a treadle. The plaintiff had been employed for two years, and was familiar with the working of the press. The plaintiff claims that the injury was owing to the defendant’s negligence in allowing the press to be out of order; that the clutch would not hold the die in suspension; that on two or three occasions the upper die was forced down upon the lower one without application to the treadle. While engaged in trying to push from the press a plate with his fingers, the upper die accidently descended and crushed them. Evidence was offered by the defendant tending to show that the press was not out of repair; that a stick was provided for moving the plates; that a notice was posted up forbidding employees from putting their hands under the presses, and that the plaintiff had been repeatedly reproved for putting his fingers between them. Held, that the plaintiff was guilty of contributory negligence, and should have been non-suited.
    Appeal from a judgment entered upon the decision of the general term of the second department affirming a judgment entered on a verdict for $1,000 damages and an order denying a motion for a new trial on the minutes.
    
      J. W. Covert, for pl’ff, resp’t; Roscoe H. Channing, for def’t, app’lt.
    
      
       Reversing 12 N. Y. State Rep., 508.
    
   Follett, Ch. J.

—When the plaintiff was injured, the defendant was engaged in preparing tin plates for roofing. The plates were prepared, in part, by a stamping press which had two dies, an upper and lower one, fourteen inches long and twenty inches wide. The lower die was immovable and the upper one movable, having a vertical stroke of about two inches. When the upper die was raised for the purpose of admitting a plate, it was stopped and held in position by a clutch which was held in place by force supplied by a strong spiral spring, the action of which was controlled by the foot of the operative applied to a treadle. When the operative had placed the plate on the lower die in proper. position for stamping, he pressed his foot on the treadle, compressed the spring which released the clutch and the upper die was forced by the power of steam down on the plate lying on the lower die.

At the date of the injury, April 17, 1886, the plaintiff was seventeen years of age, and had been employed by the defendant for two years, and for one year had operated this press and was familiar with its working and its dangers. At the date named, the fingers of the plaintiff’s right hand were caught between and crushed by the dies, for which injury he. seeks to recover compensation, upon the ground that the defendant negligently suffered the press to be out of repair. The only defect suggested by the evidence, is, that the clutch which held the upper die in suspension was not held securely in its place” and would fly back or out of position, and permit the upper die to descend upon the lower one without the application of the usual force to the treadle, which defect the plaintiff asserts caused the injury.

The plaintiff testified that on at least three occasions before he was injured, the upper die was accidentally forced down upon the lower one without the application of force to the treadle. The first occasion was about two weeks, before he was injured, and he reported the fact to the foreman who, after some examination, reported the press in good order; that the second occasion was on the day before he was injured, which he reported to the foreman, who again examined the press and reported it all right.

The third óccasion was about two hours before the plaintiff was injured. He again reported to the foreman, that the press was out of order, and he promised to fix it after the work for the day was done. The plaintiff continued to operate the press until about half past four o’clock, at which time, while engaged in trying to push from the press a plate of tin with his fingers instead of a stick, the upper die accidentally descended and crushed the fingers of his right hand. The plaintiff testified that he did not know wherein the press was out of order, and no witness was called who did know. Three witnesses were called by the defendant, who testified that they saw the press about the time of the accident, and that it was not out of repair, or defective. The plaintiff testified that a stick was provided for moving the plates between the dies, and that there was posted on his and all of the presses a printed notice in these words: “ Employees are forbidden, under any circumstances to put their fingers or hands under these presses.” The plaintiff also testified that defendant’s superintendent, Cooper, and its foreman, Rake-straw, had on different occasions reproved him for putting his fingers between the dies and warned him of the danger, and that he was accustomed to disregard the rule, and that on a former occasion one of his thumbs was injured between the dies. The only excuse given by the plaintiff for his frequent violation of the rule was, that he was required to stamp thirty-five boxes of tin plates for a day’s work, and that he could work faster with his fingers than with a stick, and that on the occasion of the accident the plate stuck to the lower die, which he could more readily remove with his fingers than with a stick. A co-employee testified that he and the plaintiff exchanged works two ■ or three hours before the accident, and that the plaintiff told him to work rapidly, as he wished to finish his thirty-five boxes by half past four and leave the factory. This the plaintiff did not dispute, and it is suggestive of a possible cause for the accident. According to the plaintiff’s evidence, he voluntarily put his hand between the dies, in violation of the well-known printed rule and of the oral , instructions of the superintendent and of the foreman, and also in the face of his personal experience of the danger of such .conduct. We fail to find the slightest evidence that this act was necessary or excusable, and it was certainly not done in ignorance of the danger, if it is true that about "two hours before the plaintiff was injured, the upper die accidentally fell. He had been very recently warned of the danger of putting his fingers between the dies, and, under such circumstances, he was very negligent in not regarding- the rule and the warning, and this negligence directly contributed to produce the injury complained of. We think the trial court should have nonsuited the plaintiff upon the ground of contributory negligence. For this -error the judgment is reversed and a new trial granted,

' with costs to abide the event.

All concur.  