
    Alfred Carlson, Appellant, v. Augustin Walsh, Respondent.
    
      Negligence — an employee, knowing of the danger, who unnecessarily steps upon a broken machine cannot recover.
    
    Where an employee,, thoroughly familiar with the construction and operation of a machine, without any necessity for so doing, steps upon a portion of" the machine where his employer has no reason to anticipate that he will step, and is injured hy the projecting portion of a broken ratchet Wheel, which he knows or has reason to believe is broken, he is not entitled to recover against his employer for the injuries thus sustained.
    Appeal by the plaintiff, Alfred Carlson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of November, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 23d day of October, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Nelson Zdbrishie, for the appellant.
    
      John Vernou Bouvier, Jr., for the respondent.
   Woodward, J.:

The plaintiff was employed as a deckhand upon a dredging scow, known as steam dredge No. 6 of the defendant. He had been employed at different times upon this dredge, and was thoroughly familiar with its construction and the operation of the machinery, as appears from his evidence. The last time he- was employed, previous to the time of the accident complained of, was from January 20 to January 28, 1899. He was again employed on the third day of March, though the dredge does not appear to,have done any Work until the sixth day of that month, and on the evening of that day the accident, by which the plaintiff’s foot was injured, occurred-It appears from the evidence that one end of the shaft carrying the drum on which the wire rope used in working the dredging scoop or bucket was bedded in bearings upon what was known as a pillow block, and that on the end of the drum there had been a rachet wheel, which came into use only when the machinery was stopped for a considerable length ■ of time, and was intended to hold the' bucket suspended in the air from the arm of the crane or derrick. The end of the dram, with the rachet intact, was. about two inches removed from the pillow block. It appears, however, that the rachet attachment had been broken at some time previous to the accident, and had remained in that condition during all of the times that the plaintiff had been employed upon the scow. The result of this break, by which nearly one-half of the rachet wheel had disappeared, was to leave a space of about four and one-half to five inches between a portion of the drum and the pillow block, while as to the remaining portion the.space was only about two inches. - The drum was inclosed in a house built upon the scow, and at about seven o’clock in the evening he was ordered by the “ mate ” or foreman to go into the house and to screw up a turn buckle, which, had the effect of increasing the power of the friction clutch. The machinery was not in motion at the time plaintiff entered the house, and he stepped upon the pillow block in the dark in such a manner that his right foot projected over the edge of the pillow block and into the space between the drum and the block at the point upon the drum from which the rachet wheel had been broken out. While in this position, and trying to adjust the turn buckle, the “ captain ” or engineer started the engine, turning the drum, so that the projecting portion of the rachet wheel caught the plaintiff’s foot, crushing two of his' toes. Upon the trial, at the close of plaintiff’s evidence, the learned court dismissed the complaint upon the motion of the defendant, on the ground that the plaintiff had failed to show that, having been, aware of the break in the rachet wheél, he had any reason for believing that the- same had been repaired at the time of the accident. An exception was taken by plaintiff’s-coUnsel, and the appeal comes to this court.'

Plaintiff’s evidence shows that the rachet wheel was broken at all of the times that he was employed upon the scow ; that its condition was a matter of general knowledge on the part of, those working with him, and that at one time the defendant’s son, who is described as “-some kind of a superintendent,” had said that he “ was going to have this fixed.” This statement ■ appeal's to have been made gratuitously by the young man some four or five days befor® the plaintiff left defendant’s employ in January, and there is absolutely no evidence that the plaintiff had any reason to believe that the repair had been made. Under these circumstances, conceding the defective rachet wheel to have been the proximate cause of the injury, the plaintiff has failed to establish the facts necessary to entitle him to recover from the defendant, and the trial court was not in error in dismissing the complaint. The danger was both known and obvious; the work which the plaintiff was directed to perform could have been done without stepping upon the pillow block at all, and we know of no rule of law which requires an employer to make it impossible that an. employee shall be injured. He has fulfilled his obligations when he has provided a reasonably safe place in which to work, has supplied tools and appliances of a reasonable character to perform the work required, and has exercised reasonable care in providing fellow-servants. There was no reason for the employer to anticipate that the plaintiff in adjusting the turn buckle would climb upon the pillow block, or that if he did so that he would project his foot out over the block in such a position as to endanger'his toes; and if the plaintiff went into the room in the dark, knowing the condition of the machinery, or at least having no reason to believe that it had been repaired, he must be deemed to have accepted the risk. The master does not insure the servant against all accidents and mishaps that may befall him in the business. The servant, when he enters into the relation, assumes not only the risks incident to such employment but all dangers which are obvious and apparent. If he voluntarily enters into or continues in the service without objection or complaint, having knowledge or the means of knowing the dangers involved, he is deemed to assume the risks and to waive any claim for damages against the master in case of personal injuries. (Crown v. Orr, 140 N. Y. 450, 452.) In the case at bar the plaintiff not only knew of the condition of the machine as it had existed for several months, with no reason for believing that it had been repaired, but it appeal's from his own evidence that he was sent into the house to do the same work, at seven o’clock in the moi'ning of the day on which he was injured, that he was performing at the time of his injury at seven o’clock in the evening, so that he had the opportunity of knowing by personal observation that the wheel was in the same condition that he had left it in January preceding. The accident was one which the defendant was not bound to anticipate would happen, since it was not necessary that the plaintiff should go upon the pillow block to do the necessary work, while to the plaintiff the risk was known and obvious and might have been obviated by the exercise of a reasonable degree of care.

The judgment and order appealed from should be affirmed, with costs.

Bartlett, J., concurred in result; Hirschberg, J., not sitting.

Judgment and order unanimously affirmed, with costs.  