Toye v. United Dressed Beef Co.

defendant was not at hand when needed by the plaintiff on the occasion of this accident,” and “that the defendant was not obliged to watch this ladder to see that it was at hand at all times, .and, if it was temporarily removed by a fellow workman, defendant is not responsible for such an accident.” The finding of the jury that the defendant was negligent in this respect is clearly against the weight •of evidence. The only testimony tending to show that the crosshead •on a similar machine was inclosed or covered was that of one witness, who simply testified that he had worked about six weeks in the fall ■of 1906 in a brewery in the city of New York where they had a larger machine, but of the same make, and that the crosshead upon that machine was covered. While employed in the brewery he was not an oiler in the engine room, but was occasionally in it. He was contradicted by at least three witnesses, two of whom were employed ■in the engine room in the brewery and had charge of the machinery therein, both of whom testified that at no time was there any covering over the crosshead, and the other witness, Hedley, who testified that for 15 years he had been an inspector of the De La Vergne Machine Company, manufacturers of the machine in question, and that the crosshead on the machine in the brewery referred to was not covered. This witness also testified, and his testimony is uncontradicted, that there were about a thousand of such machines made and sold in the United States; that the same design had been used for the last 30 years; that they were at the present time being manufactured and sold and never at any time had the crossheads been •covered; and that it was not practicable, and two other witnesses testified to the same effect, taking into consideration the use and the inspection which had to be made of the crosshead to cover it. How, "under such circumstances, can it be said that the defendant failed to •perform the duty which it owed the plaintiff by not protecting the ■crosshead in some way? The learned trial court apparently appreciated the situation by instructing the jury that a master is not bound to furnish the best known appliances, but only such as are reasonably fit and safe, and “when an employer purchases an engine •or machine at a reputable manufacturer’s, fully equipped with all the usual guards and appliances in customary use by men in the same line of business, he has a right to use this machine in the condition in which such machine is furnished to him, in connection with .his business, without any imputation of negligence because it might have been made safer if made and equipped some other way.” The rule as thus stated became the law of the case and must be applied to the facts proved. Wangler v. Swift, 90 N. Y. 38 ; Marks v. Rochester Ry. Co., 146 N. Y. 181 , 40 N. E. 782 . When so applied, there being no other claim of negligence, the complaint should have been dismissed. Sweeney v. Berlin & Jones Envelope Co., 101 N. Y. 520 , 5 N. E. 358 , 54 Am; Rep. 722; Burke v. Witherbee, 98 N. Y. 562 ; Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31 , 36 N. E. 813 .

Again, the risk incident to the uncovered crosshead was obvious and apparent to the plaintiff. He had been engaged in working about the machine for over a year before his injury. It was perfectly clear

to him that, if his foot came in contact with the moving crosshead, he would be injured. He knew that it was in motion. He testified:

“I saw that when I started to go and oil the governor. I knew it was in motion. * * * I knew if my foot got in there, there would be an accident. I knew if I got my foot in there, it would be injured.”

It was a risk incident to the work which was assumed by the plaintiff. Crown v. Orr, 140 N. Y. 450 , 35 N. E. 648 ; Knisley v. Pratt, 148 N. Y. 372 , 42 N. E. 986 , 32 L. R. A. 367 ; Dillon v. Nat. Coal Tar Co., 181 N. Y. 215 , 73 N. E. 978 ; Dixon v. N. Y., O. & W. Ry. Co., 198 N. Y. 58 , 91 N. E. 271 . The plaintiff not only knew there was some danger in oiling the machine while it was in motion, but fully appreciated it, because according to his own testimony some nine months before he was injured he told the chief engineer that the crosshead ought to be guarded, and he said “that he would attend to it.” The promise of the chief engineer to remedy the defect complained of might relieve the plaintiff from assuming the risk for a reasonable time, but could not do so for a period of nine months. Rice v. Eureka Paper Co., 174 N. Y. 385 , 66 N. E. 979 , 62 L. R. A. 611 , 95 Am. St. Rep. 585 ; Stokes v. Barber Asphalt Paving Co., 134 App. Div. 363 , 119 N. Y. Supp. 37 .

Upon both grounds,' therefore, it seems to me the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

CLARICE, SCOTT, and DOWLING, JJ., concur. INGRAHAM, P. J., concurs on the first ground.