
    Mary Mull, Appellant, v. Curtice Brothers Company, Respondent.
    
      Negligence — injury from a machine starting because of a defect in a belt by which it was operated—assumption of the risk—contributory negligence.
    
    In an action to recover damages for personal injuries, it appeared that the plaintiff was employed in the defendant's canning factory and that it was a part of her duty every afternoon to take apart and clean a meat-cutting machine which was fitted with a tight and a loose pulley and operated by a belt which could be moved from one pulley to the other by means of a belt shifter; that on the day of the accident the plaintiff commenced cleaning the machine with the belt on the loose pulley; that after she had taken the machine apart and cleaned it she attempted to readjust the parts; that while she had her hand in the hopper of the machine for this purpose the.machine suddenly started and cut off her fingers.
    The evidence warranted a finding that the cause of the starting of the machine was the shifting of the belt from the loose pulley to the tight one, and that such shifting was due to the defective condition of the belt which had existed for some time. The plaintiff testified that for at least three months prior to the accident the belt shifter failed to hold the belt in position; that about four weeks prior to the accident" she called the attention of the foreman to the matter and that the foreman directed her to have the machinist repair the defect; that the latter, after looking the machine over, said he had not time to fix it then, but would do so when he could find the time.
    It further appeared that it was no part of the plaintiff’s duty to reassemble the machine after she had taken it apart and cleaned it, and the person whose duty it was to reassemble the machine testified that he never put his hand in ■ the hopper while readjusting the machine.
    
      Held, that the plaintiff was properly nonsuited for the following reasons, viz.: That, in view of her knowledge of the defective condition of the belting, it must be held that the plaintiff assumed whatever risk attended the operation of the machine, and that the provisions of the Factory Act did not operate to relieve her from the consequences of her voluntary act;
    ‘That it appeared that the plaintiff’s injury was attributable in part, at least, to her engaging in work not within the line of her duty and to her own negligence.
    Appeal by the plaintiff, Mary Mull, from a judgment of the '.Supreme Court in favor of the defendant, entered in the office of the -clerk of the county of Monroe on the 10th day of December, 1901, upon a nonsuit granted by the court after a trial at the Monroe Trial Term, and also from an order entered in said clerk’s office on the 12tli day of December, 1901, granting the defendant’s motion dismissing the complaint.
    The plaintiff brings this action to recover damages for personal injuries sustained by her while engaged in cleaning a meat-cutting machine at' the defendant’s canning factory, she, at the time of the. accident, being in the employ of the defendant.
    The machine in question was one of several similar machines in operation at the defendant’s factory, and its construction was quite simple and not unlike an ordinary sausage-grinding machine. It was operated by means of a belt which extended from pulleys upon the machine to other pulleys attached to shafting near the ceiling. There was both a tight and a loose pulley attached to the machine and the belt was shifted from.one to the other by means of a lever, known as a belt shifter.
    These cutting machines were taken apart and cleaned each afternoon after the cutting or grinding for the day had'. Ceased, and on Saturdays they were cleaned with sapolio and polished. It was a, part of- the plaintiff’s duty to clean and polish the. machines, and it was while engaged in the performance of this duty that the injury occurred of which she complains.
    It seems that the plaintiff had taken the machine apart for the purpose of cleansing and polishing it while, as she says, the belt was-running upon the loose pulley, and, while attempting to push put - the screw which carried the meat from the hopper to the knife,.-her"'; ■ left hand was caught by the screw, and, before she- could extricate .. it, her fingers were cut or torn off.
    The evidence tended to show that the shifting of the belting from the loose to the'tight pulley was caused by some defect in the belting; that in consequence thereof the machine was set in operation, and that this would not have happened had the belting remained upon the loose pulley where it was. .when the plaintiff commenced cleaning the machine.
    At the close of the plaintiff’s case a motion for a nonsuit was granted, and from the judgment entered. thereon this appeal is brought.
    
      Charles Roe, for the appellant.
    
      C. D. Kiehel, for the respondent, '
   Adams, P. J.:

We think the decision of the trial court must be sustained upon at least two grounds, and, in reaching this conclusion, we assume that there was sufficient evidence to warrant a jury in finding that the plaintiff’s contention that the belting which operated the machine in question was so defective as to admit of its shifting itself from one pulley to the other was well founded. This defect, however, was a perfectly obvious one and one which had existed for a long period of time. The plaintiff herself testified that for at least three months prior to the accident the shifter failed to hold the belt in position, and that some four weeks prior to the accident she called the attention of the foreman to the manner in which the machine operated; that the foreman directed her to have the machinist repair the defect, and that the latter, after looking the machine over, said he had not time to fix it then but would do so when he could find the time.

In these circumstances we think it must be held that the plaintiff assumed whatever risk attended the operation of the machine with the belting in the defective condition she described; for, as we have seen, with full knowledge of such defect and of the defendant’s failure to remedy the same, she continued to operate the machine regardless of the danger which threatened her. And, if this be so, there is nothing in the Labor Law (Laws of 1897, chap. 415, § 81, as amd. by Laws of 1899, chap. 192) which relieves the plaintiff from the consequences of her own voluntary act, for, as has been well said in a recent case, there is no reason in principle or authority why an employee should not be'allowed to assume the obvious risks of the business as well under the Factory Act as otherwise.” (Knisley v. Pratt, 148 N. Y. 372, 379.)

But, if there were any doubt as to the correctness of this proposition, we think it entirely clear that the plaintiff’s injury was attributable, in part at least, to her own negligence.

As has been stated, she had been engaged in cleaning the machine at the time of the accident, to accomplish which she had taken it apart, and then, for some reason which does not clearly appear, she attempted to readjust the various parts, although Ludwig, her principal witness, testified that this was no part of her duty, but that it was his business to put the machines together after they had been cleaned. This witness also testified that, for the purpose .of washing the outside of the machine, it was not necessary to place the screw or pin in position, and that he never put his hand in the hopper while readjusting the various parts of the machine. It seems, however, that the plaintiff, after replacing the screw, attempted to pull it out, and, finding that it did not yield readily to her exertions, put her left hand into the hopper to push it out, when, as she says, “the machine started to run” and her fingers were caught. There seems to be no question but that the belt was upon the loose pulley while the plaintiff was engaged in cleaning the machine, but the plaintiff insists that the screw did not revolve until she attempted to push it out in the manner above indicated, and the witness Smith testified that when he came to the plaintiff’s assistance he found the belt running upon both pulleys, meaning, doubtless, that it was partly upon the tight pulley. We, therefore, have this condition of affairs established by evidence which is practically uncontroverted: The plaintiff was engaged in the performance of work which was not within the line of her duty, in attempting to accomplish which she placed her hand in the hopper of the machine, knowing that if the belt which was then upon the loose pulley should shift itself onto the tight pulley, as it had frequently done before, the screw or knife would revolve, with sufficient force and rapidity to cause the injury of which she complains.

She testified, it is true, that she had never known the belt to thus shift when the machine was apart, but this circumstance does not in our opinion relieve her from the charge of contributory negligence, for although some parts of the machine had not been replaced, the screw was in its proper position, and she would have us understand that it was because of the force she exerted in her attempt to push it out of position that it was set in motion.

We do not quite perceive the reason for this contention, but in any view that may be taken of the case, it is difficult to resist the conclusion, that the plaintiff’s injuries were due quite as much to her own negligence as to that of the defendant, and such being the case, it follows, of course, that she cannot recover. (Schulz v. Rohe, 149 N. Y. 132; Hartwig v. Bay State S. & L. Co., 118 id. 664.)

McLennan, Spring, Williams and Hiscook, JJ., concurred.

Judgment affirmed, with costs. 
      
      Laws of 1886, chap. 409, § 12, as amd. by Laws of 1890, chap. 398.— [Rep.
     