
    Mary Walsh, by Guardian, etc., Resp’t, v. The Commercial Steam Laundry Company (Limited), App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed January 7, 1895.)
    
    1. Master and servant—Appliances.
    It is not the master’s duty to repair defects arising in the daily use of the appliance for which proper and suitable materials are supplied, and which may be easily remedied by the workmen and are not of a permanent character or requiring the help of skilled mechanics.
    2. Same.
    He is bound to supply for the work only such appliances as are reasonably safe.
    3. Same—Risk.
    If the danger is as apparent to the employe as to the master, it becomes one of the ordinary risks of the employment, which the servant must be held to have assumed.
    4. Same.
    Where the defect is one liable to appear at any time, is obvious, easily remedied by the employe, he cannot shift the responsibility for its existence, or the failure to remove it, upon the master.
    Appeal by defendant from judgment entered on verdict of jury in favor of plaintiff, and from an order denying motion for a new trial.
    . 0. G. Nadal and Thomas S. Moore, for app’lt; F. B. Taylor and P. B. Towne, for resp’t.
   McAdam, J.

The action was to recover damages for personal injuries sustained by the plaintiff, an employe of the defendant, while working at an ironing machine or mangle operated by steam, the plaintiff’s right hand and arm being caught and crushed between the cylinder and the iron or steam chest above it. The machine consisted of a lower cylinder and an upper one, each about six feet long and eighteen inches in diameter, the lower being covered with thick felt and canvas, and the upper being of iron, which was heated by a steam connection. As those revolved, the goods passing between them were ironed by the pressure. On one side were two girls who feed the goods in, and on the other were two more girls who received the goods as they came out

The plaintiff, who was in her seventeenth year at the time, had "been employed some six months in the laundry, and had worked at least six weeks feeding the machine when she was hurt. The canvass which covered the lower cylinder was fastened at the sides by springs, but in the middle it stretched from the dampness and pressure, so that frequently it became wrinkled. These wrinkles made the surface of the canvass rough, and goods passed through were not ironed smoothly. The stretched end of the canvas where it was wrinkled was then cut off; this occurred once or twice a week; or, if the wrinkling was slight, the pressure was increased, so that the wrinkles were smoothed.out between the cylinders.

It does not appear that there was anything inherently dangerous about the machine itself, and the only complaint made is that the linen which surrounded the cylinder wrinkled, and the plaintiff’s hand was in consequence drawn into the machine whereby she suffered the injury for which she sued. It is true there was a tendency for the canvas to become wrinkled. Mr. Roe, the defendant’s superintendent, candidly states that he thought this machine wrinkled a little sooner than the other machines owned by the defendant, because, as he explains, the cylinder was more flexible; but it was no more dangerous than the others. The wrinkling on the machines was caused by the operation of ironing. The result was not a desirable one, because the mangle did not iron well when wrinkled. It was expected that the canvas on the cylinder would stretch and wrinkle, and this occurred from time to time in the course of the work, and the remedy was to tighten the pressure, or, when the linen was badly wrinkled, to cut it off. The gills themselves tightened the pressure when they desired, and usually the canvass was cut off once or twice a week.

It is evident, therefore, that the wrinkling was a detail in' the-performance of the work, to remedy which was part of the servant’s duty. Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359; Cregan v. Marston, 126 N. Y. 568; 38 St. Rep. 428; Hogan v. Smith, 125 N.7. 774; 35 St. Rep. 870. The court, in Cregan v. Marston, supra, said : “It is undoubtedly true, as we have often said, that it is the duty of the master to keep a machine or appliance in order, and that he cannot delegate the duty so as to escape responsibih ity. But that is a general rule and has its qualifications and limitations. One of those is, that it is not the master’s duty to repair defects arising in the daily use of the appliance for which proper and suitable materials are supplied, and which may be easily remedied by the workman, and are not of a permanent character or requiring the help of skilled mechanics.”

Suppose the master had sent for an expert mechanic or machinist to repair this machine, what would have been the result? Not the exercise of the skill belonging to an expert, but a suggestion that the employe smooth down the wrinkle, or, if too large, to cut it off. The defect as well as the remedy for it was open and apparent; so that anyone accustomed to the machine could have seen the defect and known how to remedy it, without the aid of the master or of anyone possessing a knowledge of the technics of machinery.

Again, the master is not under an obligation under all circumstances to make use of the safest known appliances and instruments; nor is he responsible for failure to discard those which are not such and to supply their place with safer ones. 2 Thomp. on Neg. 983; Burke v. Witherbee, 98 N. Y. 562; Probst v. Delamater, 100 N. Y. 266; Marsh v. Chickering, 101 N. Y. 396; Hickey v. Taaffe, 105 N. Y. 26; 6 St. Rep. 426; Stringham v. Stewart, 111 N. Y. 188; 19 St. Rep. 621; Dobbins v. Brown, 119 N. Y. 188; 28 St. Rep. 957; Kern v. De Castro & D. S. Refining Co., 125 N. Y. 50; 34 St. Rep. 363; Carlson v. Phenix Bridge Co., 132 N. Y. 273; 43 St. Rep. 942; Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31; 58 St. Rep. 437. Moreover, a master is not bound to furnish the best known appliances for the work, for he discharges his full duty when he furnishes those which are reasonably safe (Id.); and if the danger be as apparent to the employe as to the master it becomes one of the ordinary risks of the employment which the servant must be held to have assumed. Gibson v. Erie R. R. Co., 63 N. Y. 449; Shaw v. Sheldon, 103 N. Y. 667; 3 St. Rep. 679; Sweeney v. Berlin & Jones Env. Co., 101 N. Y. 520; Hickey v. Taaffe, supra; Appel v. Buff., N. Y. & P. R. R. Co., 111 N. Y. 550; 20 St. Rep. 90; McQuigan v. D., L. & W. R. R. Co., 122 N. Y. 618; 34 St. Rep. 618; Reiss v. N. Y. Steam Co., 128 N. Y. 103; 38 St. Rep. 842; Davidson v. Cornell. 132 N. Y. 228; 43 St. Rep. 887; Ogley v. Miles, 139 N. Y. 458; 54 St. Rep. 711; Crown v. Orr, 140 N. Y. 450; 55 St. Rep. 834; Kaye v. Rob Roy H. Co., 51 Hun, 519; 21 St. Rep. 668; Ballard v. Hitchcock Mfg. Co., 51 Hun, 188; 21 St. Rep. 548; Carlson v. Phenix Bridge Co., supra.

The most frequent ground on which damages have been given against masters is where the danger was latent, and not discoverable by the servant by the exercise of ordinary care and skill in his department of service, but either known to the master or such as by the exercise of reasonable care he ought to have known. 2 Thomp. on Reg. 979.

Some stress is laid on the fact that attention was drawn to the wrinkles the day before the accident, and it is said a complaint was made that the machine wrinkled. It appears that the forewoman found fault because the work was not properly ironed, and as an excuse it was said that the canvas was wrinkled. Mr. Roe was called to obviate this, and he tightened the pressure. It is said that the wrinkling continued afterwards. But the wrinkling was obvious, and if there was any danger from it, it was, as before remarked, an apparent one, and such apparent risks must, under the authorities, be held to have been assumed by the employe.

Éoe was a co-servant of the plaintiff. But assuming he was an alter ego, standing in place of the master, the legal result is not changed; for the master was not bound to remain by the employes while performing their labor for the purpose of keeping out the ever-recurring wrinkles, which they were as capable of remedying as anyone else.

If there had been any defect in the machinery itself, or if the danger had been latent, and the master had assumed to repair or obviate it, and the employe, supposing that the defect had been repaired and the danger removed, had continued in reliance on this belief to perform labor, a different question might have arisen. But where the defect was one liable to appear at any time, was obvious, easily remedied by the employe herself, she cannot shift the responsibilty for its existence or the failure to remove it upon the master. Employes must, in the nature of things, be considered to have assumed the risks common to their employment, particularly those arising in the dailjl use of their appliances, and-the accident which befell the plaintiff resulted from one of those risks. Sherman & Rcdf. on Neg. §§ 184, 208.

For all that appears to the contrary, the machine furnished by the defendant was scientifically constructed, was in good order, and performed every function for which it was intended, and the injury which resulted to the plaintiff occurred from a defect arising in its daily use, and of a temporary character which any employe was capable of remedying. The plaintiff had been in the defendant’s employ sufficiently long to have become familiar with the machine in all its details; she was familiar with the very defects of which' she now complains, and evidently assumed the risks resulting from them as incidents to her employment. Hickey v. Taaffe, supra; Buckley v. Gutta Percha & R. Mfg. Co., 113 N. Y. 540; 23 St. Rep. 618; Ogley v. Miles, supra; Crown v. Orr, supra.

Under these circumstances we think there was nothing to go to the jury, and that the defendants motion to dismiss the complaint should have been granted, and the exception to the refusal is error for which the judgment and order appealed from must be reversed, with costs to the appellant to abide the event.

Freedman, P. J., and Gtldersleeve, J., concur.  