
    Jerry McCue, Resp't, v. The National Starch Manufacturing Co., App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Master and servant—Negligence.
    Plaintiff, an ordinary day laborer, with no knowledge of machinery, while working for defendant, undertook to put a pin in a wheel where one had come out, and was injured. He testified that he tried to stop the machinery, but was unable to do so; that he had been told to fix the machinery when out of order, and had received no other instructions. Defendant’s testimony tended to show that he had been told to report anything wrong to the machinist. Held, that the court properly refused to charge that it was negligence for plaintiff to attempt to repair the machinery, and submitted the question to the jury.
    _ Appeal from judgment in favor of plaintiff, entered upon verdict.
    Action to recover for personal injuries.
    Plaintiff, who was a day laborer, and had no knowledge of machinery, was employed in defendant’s feed department, in which were cisterns containing machines for stirring the feed or gluten. These were connected by shafting and cog wheels with a shaft near the ceiling. A pin in one of the shafts having fallen out, and that machine having stopped, plaintiff attempted to stop the machinery, but failed, and thereupon climbed up on a frame near the wheel and attempted to put in a pin, when his hand was caught and injured. He testified that he had been told to fix the machinery when out of gear, and that no instructions were given him.
    On the other hand, defendant gave evidence tending to show that plaintiff had not been told to fix the machinery, but had been told to report anything wrong to the machinist
    The trial court charged in part as follows: “ This action rests upon this principle: This is a laborer, working by the day, ignorant of machinery, and the question is, did this company, the master, through its agents, tell him to fix the machinery when it became out of order, and did they fail to instruct him as to its dangers ? He says they did. • Now the whole action rests there. Did they put the duty upon a laborer, ignorant of mechanics, to repair machinery, and did they fail to tell him of the dangers of doing it? If you find that they did, this plaintiff is entitled to recover compensation at the hands of this employer. But if he was not told to repair such things as these when they became out of order; if he was told to go to the machinist’s office and report, and he then undertook of his own notion to put this pin in while the power was upon it, and was thus injured, he must bear the loss. This whole conflict is addressed right to that question of fact. You are to determine it. If you find that they put this duty upon him, being ignorant, without instructions as to the danger, and he was injured thereby, the company is liable so far. Is there negligence proved against the company? If not, there is no verdict for the plaintiff possible in the case. Now the plaintiff owed a duty. Where an employe is injured by the neglect of the master, you must find in addition that he did nothing that be should not have done, on the occasion in question, which contributed to the injury. His duty was to furnish that care, prudence, caution and anticipation of danger, in the circumstances in which he was placed, that you would expect from a man of ordinary prudence. If he failed in that, he cannot recover, no matter how negligent the company may have been. But if he furnished the prudence of an ordinarily prudent man on the occasion and the master was negligent, he is entitled to recover compensation for the injury,” and refused to charge, as matter of law, that it was negligence for plaintiff to attempt to repair the machinery.
    
      M T. Payne {II. A. Monfort, of counsel), for app’lt;
    
      B. W. Downing, for resp’t
   Pratt, J.

The judge’s charge correctly stated the rules of law upon which the case depends.

The request of defendants that the jury be charged that it was negligence for plaintiff to attempt to repair the machinery was properly denied.

Upon that question evidence had been given, and it was properly left to the jury to pass upon its weight.

The testimony was in conflict upon many points, but the questians were for the jury, and we cannot interfere with their determination.

Judgment affirmed, with costs.

D Tor ah, J., concurs; Barhard, P. J., not sitting.  