
    Francis Millerick, an Infant, by Johanna Millerick, His Guardian ad Litem, Respondent, v. Albert J. Wing and Eugene R. Hartt, Appellants.
    Third Department,
    June 24, 1909.
    Master and servant—negligence — injury by candy machine — obvious risk — failure to instruct — act of fellow-servant.
    Even if it be assumed that a master was negligent in failing to place a guard over the rollers of a machine used to form candy into, nuggets, the danger of placing one’s fingers between such rollers is so open and obvious to an employee sixteen years of age that he cannot recover for injuries so received.
    This is so although some overheated candy was sticking to the rolls and no warning of the added danger was given by the superintendent. This, because the danger was as apparent to the servant as to the foreman, and the master was not bound to warn a servant, sixteen years of age that he should be careful not to get his fingers stuck in the candy upon the rolls.
    Where the action for injuries so received is not brought under the Employers’ Liability Act any negligence of the foreman in leaving the candy upon the rolls was that of a fellow-servant and not chargeable to the master.
    Chester and Kellogg, JJ., dissented.
    Appeal by the defendants, Albert J. Wing and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 18th day of December, 1908, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the lltli day of January, 1909, denying the defendants’ motion for a new trial made upon the minutes.
    
      Neile F. Towner, for the appellants.
    
      William J. Grattan [John Scanlon of counsel], for the respondent.
   Smith, P. J.:

The action is for damages for injury suffered by the plaintiff while in the defendants’ employ, claimed to have been' caused by the defendants’ negligence. The defendants were candy manufacturers. The plaintiff, a boy sixteen years of age, hired out to them as a candy maker’s helper in July, 1902. He had previously Worked for two years and a half in two different candy manufactories. In the defendants’ factory was operated what is called ' a nugget machine. The nature and operation of this machine was clearly shown by the illustrations in the circulars handed up to the court. The machine consists simply of two rollers operated by power. In these rollers are corresponding indented cavities, so. that when the candy is rolled through, these indentations form little candy nuggets which drop out of the machine upon the further side. The candy is put through in strips about six inches wide, and to prevent its sticking to tlie machine it is freely floured. ,

This machine had been prior to October, 1902, worked by a man named Wilbur. In that month the defendants’ foreman told the plaintiff that he had a job for him and that Wilbur would teach him how to operáte the machine. Wilbur did give him instructions in operating the machine, and for three days arid a half the plaintiff operated the machine himself without trouble. Upon the fourth day, by reasori of the candy having been overheated, it stuck to the rollers. The plaintiff called the attention of the foreman to this fact and the foreman stopped the machine and dug out the candy from the little cavities in the rollers. The plaintiff xvas then instructed to put flour upon the rollers. The testimony of the foreman is to the effect that lie was told to throw it upon the rollers as they were moving. The testimony of the plaintiff is to the effect that he was told to put his hand down near to the roller and drop it as the roller was moving; While in the act of putting flour upon the roller his hand was caught between the rollers, resulting in'the injury to two of his fingers, which were afterwards required to be amputated. It is for this injury that the jury has awarded a verdict of $2,000.

It is difficult to see how under these circumstances the defendants can be held liable for this injury. Assuming for the argument that the defendants were negligent in failing to place a guard upon the machine, the absence of the guard was evident. It matters little whether the plaintiff was feeding the machine from one side or the other, or'was putting the flour upon the rollers from, one side or the other. If those rollers wore rolling together, a mere child would have seen, that .to get his fingers between them would cause his fingers to be crushed. The plaintiff, however, urges a distinction between this case and a case of apparent danger. He says that some candy had been left upon the rollers and he was not warned by the superintendent that if he placed his fingers near enough to the machine to .get touched by the candy they might be drawn into the machine thereby. The contention that there was candy upon the machine, by reason of which his fingers were drawn between the rollers, hangs upon a very slender thread of evidence. There is much evidence to the contrary. But if we assume for the argument that there was sufficient to make this a question of fact for the jury, any. danger to be apprehended therefrom was just as evident to this plaintiff as it was to the foreman. It is not every conceivable danger of which a master must warn his servants. It is only those dangers which by a man of ordinary prudence ought to be anticipated as threatening injury. To hold that the master was bound to inform a sixteen-year-old boy that if he got his fingers between two rollers they would be crushed, or if a little candy happened to remain upon the rollers he should be careful not to get his hand stuck in that candy, would seem to be a,most unreasonable requirement, and the defendants have here been held Hable for an accident which no reasonably cautious man would Have anticipated to a boy of any intelligence whatever.

This boy was no mere child. He had been working in a candy factory two years and a half. .There is nothing in the case to indicate that he was not a boy of ordinary intelligence. He had been instructed in the use of this machine by his predecessor, Wilbur, and the criticism that he was called to a dangerous place without notice of a hidden danger is hardly justified by the evidence. The action is not brought under the. Employers’ Liability Act. Any negligence of the foreman in leaving the candy upon the rolls was not the negligence of the master, but was the negligence of a coemployee, as it was negligence in a matter of detail. I can find no ground upon which the defendants can be held liable, and, therefore, recommend that the judgment' and order be reversed and a new trial granted, with costs to the appellants to abide the event.

All concurred, except Chester and Kellogg, JJ., dissenting.

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