
    Charles E. Poole, an Infant, by Charles H. Poole, His Guardian ad Litem, Respondent, v. American Linseed Company, Appellant.
    Second Department,
    April 26, 1907.
    Negligence use of machinery’— when owner required to protect same i under section 81 of the Labor Law— assumption of risk.
    A defendant who maintains machinery for a cooperage as part of its business establishment, and who contracts with the plaintiff’s- emplojér to keep the machinery in repair and allows him to use it to repair barrels for it which it uses in:its-business) is under the duty imposed by section 81 of the Labor Law' to properly guard the machinery and maybe held liable for an injury resulting to the plaintiff from an unguarded shaft of the engine.
    The duty prescribed by said section rests, upon the defendant although there be no contract relation between him and the plaintiff. The rules governing where machinery is leased do not apply, as the defendant retained control and - charge of the machinery, merely allowing its use by the plaintiff’s employer. Under such circumstances it is not error' to refuse to submit the questions of assumption of risk to the jury. Assumption of risk is a matter of contract and inapplicable in an action against a' third person.
    . Appeal by the defendant, the American Linseed Company, from a judgment of the Supreme Court in-favor of the plaintiff, entered in the office of the clerk of the county of Bichmond on the 16th day. of March', 1906, upon the verdict of a jury for $2,000, and also from an order bearing date the 24th day of May, 1906, and entered in said .clerk’s ■ office nunc pro tunc as of the 13th day. of March, 1906,- denying the defendant’s motion for a new trial made upon the minutes. ■ • ' -
    
      Frederick F. Fishel, for the appellant.
    
      Gilbert D. Lamb [George Gallagher with, him on the brief], for the respondent. • .
   Gaynor, J. :

The defendant uses barrels and casks in its business. A part of its establishment was fitted up with machinery for -a cooperage. The defendant had a contract with, the plaintiff’s employer by' which- he was to use such cooperage to repair the barrels it used at specified prices. It agreed in the contract to furnish and maintain all of the machinery complete and keep it in repair. The plaintiff was caught, in, an unguarded shaft'of the engine in the cooperage while at work there and hurt. The defendant claimed that it' was not liable to the plaintiff therefor; that the liability, if any, was with- his employer.

Section 81 of the Labor Law imposes on “ The owner or person in charge of -a factory ” the duty to properly guard several specified-parts of machinery, including shafting by name, “and machinery of every description ”. This of course only means machinéry which needs, to be and can be guarded for the safety of employes, as has been-held. The learned trial judge submitted to the jury.whether the shafting on which the plaintiff was caught carné within this . category. He charged, .as matter of law that- the said statute ■requirement applied to the defendant in respect of the plaintiff. This was correct. It had set up and furnished the machinery, and agreed to maintain it to enable the plaintiff’s employer to repair its barrels. In this respect it was “ in charge ” of the factory within the meaning of the statute, and- was therefore under the duty which the statute imposes. Ho contract relation between it and the plaintiff was necessary; the duty grew ..out pf the statute. This was not the' case of a factory and its machinery leased to a tenant to be used and maintained by him. The defendant retained control and charge .of the machinery, merely, allowing its Use by the plaintiff’s employer for its purposes. Whoever is under a statute duty, or a common law duty,- isliablé^ the same in- each .ease, for injury done to’another by its neglect. The liability grows out of‘the' duty, To say that, such neglect is some evidence of negligence upon which liability may be based is meaningless; it creates the liability (McMullen v. City of New York, 110 App. Div. 117; San Filippo v. American Bill Posting Co., 112 id. 395).

The learned'trial judge was right in refusing to submit the question of the assumption ■ of the risk of the unguarded shaft by the •plaintiff to the jury. The assumption of risk is a matter of contract, and there was no-contract relation between the plaintiff and the defendant. A servant assumes such a risk as a part of his contract’ of. ser vice; he agrees to the risk in order to be. employed and paid. The defendant could, not discharge the 'plaintiff, or impose- any risk On him as-'a condition of his remaining, at work - (Citrone v. O'Rourke Engineering Construction Co.,113 App. Div. 518). The charge that if the plaintiff was guilty of contributory negligence he cpuld not recover was all that the defendant was entitled to.' .Assumption of risk and contributory negligence are distinct things. The case was treated with scientific discrimination by the learned trial'Judge.. - ' - ■

The judgment-should be affirmed. ,■ ■ -

Woodward and Rich, JJ., concurred ; Jerks, J., concurred in result. - , ■

Judgment a,nd order unanimously affirmed, with costs. .  