
    Catherine Hurley, as Administratrix, etc., of Daniel P. Hurley, Deceased, Respondent, v. The Atlantic, Gulf and Pacific Company, Appellant.
    Third Department,
    May 4, 1910.
    Master and servant — negligence—injury to engineer — failure , to provide signals — unguarded machinery.
    Where in an action to recover for the death of plaintifl’.s intestate, an engineer on a dredge, it appears that the leverman on deck controlled the engine, but that in conjunction therewith the deceased by means of a'stop valve could stop it so as to render himself independent of the leverman, and that while making repairs he received fatal injuries by the sudden starting of the engine by the leverman, no-recovery can be had against the master for failure to provide a - system of signals between the leverman and the engineer.
    Where it further appears that deceased, with full knowledge of the possible con ■ sequences, purposely and voluntarily, for the purpose of testing a bearing, placed himself in contact with the cog wheels which injured hiín, no recovery can be had against the master for failure to guard the machinery properly;
    The purpose of guarding machinery is to prevent accidental or inadvertent contact therewith. ,
    
      Appeal by the defendant, The Atlantic, Gulf and Pacific Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office 'of the clerk of the county of Washington on the Ytli day of May, 1909, upon the verdict of a jury for $11,000, and also from an order entered in said clerk’s office on the 2d day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff’s intestate, Daniel P. Hurley, was an engineer employed on a dredge operated by the defendant. In the hold of the dredge and at its forward part was the cutter engine room ten feet wide.and nearly twenty-five feet long. In that room was the cutter engine which by a large and small cog wheel rotating into each other transmitted power to a shaft extending through the side of the dredge and driving the cutter which cut or loosened the earth or mud to be removed. The cutter engine received its power from the boilers near the rear of the dredge, being connected therewith, by a steam pipe. In the progress of the. work the cutter engine would frequently stop owing to the clogging or obstructing by the material which was being removed. A leverman stationed in the lever room on the upper deck by supplying the steam to the cutter engine controlled its operation. When it stopped by the clogging of the material and the obstruction was removed he supplied the steam with which to again set it in motion. In conjunction, however, with this • control which the leverman had over the cutter engine there was also constructed a stop valve in the steam pipe connecting the boilers with the cutter engine. This stop valve was only three or four feet in the rear of the cutter engine-and was designed to give any person working in connection with the latter engine absolute control thereof independently of the operation of the leverman. If this stop valve was closed the leverman was powerless to set the cutter engine in motion.
    At the time of the accident Hurley, the engineer, was in charge of the entire machinery.' A short time prior thereto some machinery in the cutter engine room had been repaired by Hurley and his assistant. These repairs-made it necessary for them to observe that one of the bearings did not become overheated by friction. Hurley intered the room while the engine was quiet and asked his assistant about the bearing. The latter at that time had his hand upon the bearing and said it was hot.'' Hurley put his hand upon it when the engine was started by the leverman. Hurley stood at the'time in sucli a position with reference to the cog wheels that when they started his foot came in contact with them and he received injuries which resulted in Iris death. The stop valve had not been closed. Hurley knew about this, valve and its purpose and had assisted in installing it in the dredge and had given instructions to his assistant that it must be closed before doing any work on the cutter engine. ' "
    Plaintiff has recovered a judgment because of the alleged negligence of the defendant arising out of the foregoing facts. •
    
      James Russell Soley and Carroll G. Walter, for the appellant;
    
      Kiley & Bush \T. X). Trumbull, Jr., of counsel], for the respondent.
   Cochrane, J.:

The jury were told by the trial justice that they might find the defendant negligent either because it failed, to provide a system of signals between the leverman and those in the cutter engine room whereby the latter could be informed that the former was about to start the cutter engine; or because the machinery in ■ the cutter engine room was not guarded. ’

First. The men in the cutter engine room had,absolute control, of that engine. It was made their duty to close the stop valve and, they were thereby rendered entirely independent of the action of the leverman. He was powerless if they made proper use of the facilities at their disposal. The plan adopted was, to say the least, certainly as safe as a method of communication between the lever-man and the cutter engine room. By the latter method the deceased would have.been dependent on the proper observance of duty by the leverman, whereas by the method in use the deceased held, his safety in liis-own hands and could not be. made the victim of any inattention to duty by the leverman. The defendant clearly performed its entire duty in this respect.

Second. It may be that this machinery could have been guarded. The ordinary purpose of guarding machinery, however, is to prevent workmen from accidentally or inadvertently coming in contact therewith. Here the deceased purposely placed himself in contact with the machinery. His duty required him to do so for the purpose of repairing it and to see whether the part repaired was operating properly. Possibly if the machinery had been guarded the deceased could not have placed himself in such a position with reference thereto that he would have been injured. But the position which he assumed was voluntary and designed and not accidental or inadvertent and was assumed with full knowledge of the consequences in case the machinery should start. If this accident was due to the absence of guards the record fails to disclose such fact.

The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  