
    William A. Ekendahl, an Infant, by Gustaf A. Ekendahl, his Guardian ad Litem, Appellant, v. George Hayes, Respondent.
    
      Negligence — a servant injured while passing through a narrow space near revolving cogs.
    
    In an action predicated upon the defendant’s negligence, it appeared that a machine for corrugating iron was composed of fluted iron rollers which matched together and were turned hy cog wheels attached to a shaft at either end of . the machine. These cog wheels revolved upwards and could not take hold of anything, unless it were introduced from below. The' plaintiff, who was employed in taking away the sheets of iron as they came from the rollers, was directed hy the engineer, who had stopped the rollers, hut not the cog wheels, to mean the machine, and was told to go around on the other side of the machine and that he would find there a piece of waste. The cog wheels were protected
    
      by a post, the distance between which and the wheels was about sixteen inches. The plaintifE went between the protecting post and the machine, when a species of glove which he wore caught in the cogs and his hand was drawn in and was injured.
    
      Held, that as the plaintiff knew that the wheels were in motion, the law charged him with notice that he would be injured if he placed his hand upon the cogs; That his act in passing through the narrow space, while the cogs were in motion, was clearly negligent.
    
      Semble, that the cog wheels were sufficiently guarded.
    Appeal by the plaintiff, William A. Elcendahl, an infant, by G-ustaf A. Elcendahl, his guardian ad litem, 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 10th day of April, 1896. upon a dismissal of the complaint upon the merits directed by. the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of Kings.
    The action was brought to recover damages occasioned by per- ■ sonal injuries caused by the alleged negligence of the defendant.
    
      J. Edward Swanstrom,, for the appellant.
    
      Thomas S. Moore and Herbert C. Smyth, for the respondent.
   Hatch, J.:

The plaintiff was injured by having his hand caught in the cogs of wheels attached to a machine for corrugating iron. He was sixteen years of age, and of sufficient ability to understand and appreciate the dangers incurred in the operation of the machine, which were apparent to ordinary observation. He had been employed about' defendant’s factory for a year and four months prior to the accident as a helper and assistant to the men sent outside of the factory, and for the most part his employment did not bring him in contact with the machines, although he had seen them and had passed by the corrugating machine and had worked some on other machines in the factory. Upon the day of the injury he was sent by the superintendent of the factory to assist about the removal of iron from the rear of the corrugating machine, and was placed under the control and direction of the engineer who operated it. The machine was operated by steam power and was made up of fluted iron rollers ten feet two inches long, which matched together and were turned by cog wheels attached to a shaft on either end of the machine. On the side of the machine where the injury was received the large cog wheel was forty-two and one-half inches in diameter,- and the small one into which the larger one matched was six and one-half inches in diameter. The wheels revolved- upward and nothing could be drawn therein unless it started from the under side. The small wheel was two feet and eight or nine inches from the floor. There was no covering over the wheels and this part of the machine was not protected except by a post which stood as a guard. The evidence was somewhat conflicting as to just where the post stood with reference to the cog wheels, plaintiff’s witnesses claiming that it stood to one side of the wheels, and defendant’s that it was directly in front. How far it was removed from the wheels was also a question in dispute, plaintiff’s testimony tending to show that it was removed sixteen inches from the wheel, and defendant’s that it was . only removed eleven and one-lialf inches. The deputy factory inspector had inspected this machine and its protection, had reported that it was fairly well guarded, and testified as a witness upon the trial to the same effect, and also that he regarded the wheels as sufficiently well guarded by the post to make it safe. The work required of plaintiff about this machine was to take away the sheets of iron as they came from the rollers at its rear. For protection to his hands in handling the iron he wore a piece of canvas with a slit through which his hand passed. The slit fastened at the wrist and the canvas lay flat upon the hand. He worked taking the sheets of iron away for about ten minutes, when the engineer ceased passing the sheets through, stopped the rollers but not the wheels, and left the machine to go to the boiler room. Before leaving he directed plaintiff to clean up the machine until he came back, and that he would find a piece of waste for that purpose upon the other side of the machine. Plaintiff started to go to the other side of the machine, passed between the post and the wheels, when the canvas upon 'his left hand caught in the cogs of the wheels, drawing his hand in and inflicting the injury complained of.

The complaint was dismissed, at the close of the evidence, upon the ground that negligence on the part of the defendant was not established, and that the cause of the injury was from an obvious danger of which plaintiff took the risk. The defendant is not without the support of authority to show that he complied with the statute requiring him to guard this machine. (Pauley v. S. G. & L. Co., 131 N. Y. 90; Cobb v. Welcher, 75 Hun, 283.)

The wheels needed no guard for the top, as the direction in which they revolved would not draw anything therein if it were placed directly upon the top of the cogs. In order to get anything into the wheels it must enter from below. The post stood in such close proximity to the wheel as to satisfy the factory inspector that it was sufficient as a guard, and as one must get below to get in at all and between the post and the wheel, much force is left for the conclusion that the danger of being caught was not such as would be within reasonable apprehension. But however this may be, we place our decision upon another ground. Plaintiff knew, for he so testifies, that while the rollers were stopped the cog wheels were revolving. The law charged him with notice that if he placed his hand upon the cogs, so that it would be drawn in, injury would result. (Hickey v. Taaffe, 105 N. Y. 26.)

Had he passed around the machine in the prosecution of the work he was directed to do, and, without anything to attract his attention to the wheels or guard of any kind to prevent contact with them, had thoughtlessly brought his hand in contact with them, it might well be that he could shelter himself from the consequences of sucia an act by setting up that he was entitled to rely upon the assumption that the place to which he was sent was safe and free from danger, that he was not aware of any danger, and had received no instructions to enable him to guard against it. This is the case to which the appellant invites our attention. But it is not the case proved upon, the trial. The space between the post and the wheels did not exceed sixteen inches, in the most favorable view for plaintiff of which the case permits; we have but to measure that distance to see that in the passage of the body through this space one is brought almost dii’ectly in contact with the wheels. The most casual observation would indicate that such space could not be meant for ordinai’y passage, and when plaintiff adopted this passage he took upon himself whatever of risk there was in the situation. The direction of the engineer was to “ go around on the other side of the machine and you will find a piece of waste.” This direction was to go to the front of the machine, as plaintiff then stood at its rear; in following it there was no necessity to squeeze between the post and the machine. To go around to the other side of the machine was not dangerous if lie passed outside the post. The most casual observation would disclose the danger of the passage through the confined space which plaintiff adopted. Such act constituted negligence upon the part of the plaintiff, for which failure to instruct and infancy is no shelter. (Ogley v. Miles, 139 N. Y. 458.)

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.  