Chasen v. Astoria Light, Heat & Power Co.

Headnote

Chasen v. Astoria Light, Heat & Power Co., 168 App. Div. 929 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 26, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The action was brought to recover damages for personal injuries, consisting in the loss of the plaintiff’s right arm, caused by its being caught between a- revolving pulley and a moving belt on a coke barge belonging to the defendant, while the plaintiff was in-its employment. After both parties had introduced their evidence and rested, defendant’s counsel moved to dismiss the complaint, on the ground that the plaintiff was guilty of contributory negligence and that the defendant was not guilty of negligence and that the risk of the accident was assumed by the plaintiff and was .an ordinary risk in the course of his employment; and the motion was granted. On a former trial of the same action the plaintiff recovered a verdict on which judgment was entered. This judgment was reversed by the Appellate Division, and a new trial granted; and the following memorandum was handed down by the Appellate Division ( 161 App. Div. 942 ): “ Plaintiff’s reaching his arm beneath the belting and along the face of the revolving pulley to apply a cling material, so as to make the pulley engage the belting, was incurring needlessly the obvious risk of his arm being drawn into the pulley. His own testimony, therefore, showed that plaintiff was not in ' the exercise of due care and diligence at the time,’ within Labor Law (§ 200).”