
    Peter Larsen, Respondent, v. Lackawanna Steel Company, Appellant.
    Fourth Department,
    July 11, 1911.
    Appeal — powers of Appellate Division — what questions for jury — negligence— master and servant — Employers’ Liability Act —assumption o’f risk — contributory negligence.'
    While it is the duty of the Appellate division to review the facts and to set aside verdicts which it regards as excessive or against the evidence, disputed questions of fact must ultimately be settled by the jury.
    The jury is in the last analysis the final arbiter of the amount’ of damages in negligence actions.
    Where a case has- been fairly tried and the verdict is not the result of ' favor, passion or prejudice, and is fairly sustained by the evidence, it should not be set aside simply because the opinion of the appellate judges may not accord with that of the jury and trial judge.1
    Where in an action for personal injuries brought under the Employers’ Liability Act it appears that plaintiff at the time of thv accident ’was absorbed in his work and unconsciously put himself in danger and was injured, through the failure of his employer to guard a set screw as required by statute, it Will not be held as a matter of law that he assumed the risk or was guilty of contributory .negligence.
    In an action brought under the Employers’ Liability Act the questions of assumption of risk and contributory negligence are for the jury.
    Appeal by the defendant, the Lackawanna Steel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office- of the clerk of the county of Erie on the 23d day of January, 1911, upon the verdict of a jury for $17,500, which was reduced by stipulation to $12,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Evan Hollister, for the appellant.
    
      Truman C. White and Hamilton Ward, for the respondent.
   Kruse, J.:

The plaintiff, a foreman in the defendant’s employ, was caught by' an unguarded set screw projecting from a Involving shaft and thrown from a platform to the ground, a distance of about twelve feet, and seriously injured.

The action has been tried twice. Upon the first trial a verdict was rendered in plaintiff’s favor for $4,750, and the judgment entered thereon reversed here and a new trial ordered. (Larsen v. Lackawanna Steel Company, 138 App. Div. 375.) Upon the second trial a verdict for $17,500 was rendered, which was reduced by the trial justice to $12,000, the plaintiff having consented thereto to avoid a new trial. The defendant again appeals to this court, contending among other things that the verdict is still excessive.

I think we should not again set aside the verdict, either as excessive or as against the weight of the evidence. While it is our duty to review the facts, and we do not hesitate to set aside verdicts which we regard as excessive or against the evidence, those questions must ultimately be settled by the jury in a case like this. And it not infrequently happens that cases come back on the second or third appeal with verdicts increased, which may possibly indicate that we have misjudged the question, at least as viewed by the tribunal which is the final arbiter thereon. Where a case has been fairly tried and the verdict is not the result of favor, passion or prejudice, and is fairly sustained by the evidence, the verdict should not be set aside here simply because our judgment may not accord with that of the jury and the trial judge who has permitted the verdict to stand.

The questions here are quite simple. The plaintiff was upon the platform trying to ascertain the cause of a belt running off the pulley on' the revolving shaft. He was rightfully there. His mind was evidently concentrated upon his work, and not knowing, as he says, of the projecting set screw, he unconsciously leaned against the shaft or near enough to be caught by the set screw. • If the defendant had guarded the set screw as the law requires the accident would not have happened. That it was practicable to guard the set screw and its location such as to make it reasonably necessary to do so is clearly established.

The only serious, questions, as I view the case, are contributory negligence and assumed risk. As regards the latter, I think the unguarded set screw was such a defect as to come within the provisions of the Employers’ Liability Act, and, therefore, the provisions of that act relating to assumed risk are applicable to this case, the proper notice having been served as required by the act.

That question, as well as contributory negligence, was a question of fact for the jury. In an action such as this, •brought undpr the Employers’ Liability Act, where a workman is absorbed in his work and unconsciously puts himself in danger and is injured through the failure of his employer to safeguard him as the law requires, I think it cannot be held as ■ a matter of law that he assumes the risk or is guilty of contributory negligence.

The case of Dillon v. National Coal Tar Company (181 N. Y. 215), upon which the appellant relies, does not, as it seems to me, apply to this case. The Dillon case was not brought under the Employers’ Liability Act. . The-questions of assumed risk and contributory negligence were determined under the rules of the common law; and, besides, I think there are other features of that case which distinguish it from this.

The learned trial judge charged that if the plaintiff knew of the set screw at any time prior to the accident, or could have seen it by ordinary observation, either when the shaft was. stationary or when it was in motion, the verdict must be for the defendant. I think the charge more favorable than the defendant was entitled to, the action being under the Employers’ Liability Act. But since the evidence was such that the jury could find a verdict in favor of the plaintiff, even under that rule, the verdict should not be' disturbed.

I think the judgment and order should be affirmed,, with costs. -

All concurred; Robson, J., in result only.

Judgment and order affirmed, with costs.  