Hebbell v. Pioneer Paper Co.

[1] Appellant’s principal contention herein is that the accident in- question was’ the result of defendant’s negligence in failing properly to guard this belt, pursuant to. section 81 of the labor law. On the other hand, respondent claims that the belt was so high above the floor of the pit that it couldl not reasonably be expected to be a source of danger, and that therefore section 81 does not apply, citing Dillon v. National Coal Tar Co., 181 N. Y. 215 , 73 N. E. 978 , and Wynkoop v. Ludlow Valve Co., 196 N. Y. 324 , 89 N. E. 324 , 30 L. R. A. (N. S.) 36 . We think, however, that the principles laid down in these cases do not apply to the facts of the case at bar This pit, especially since the placing of the stock pump there, was clearly a place wherein employés at least occasionally jhad to be to look after the mill machinery and appliances under their charge. If the floor qf the pit had been dry, and convenient access thereto had been provided, a different situation would be presented. Upon such a state of facts the possibility of one coming in contact with the belt by standing on the pipe above the spout might be, under the authorities, too remote to require the guarding of the belt. Bujt such was not the situation as disclosed by the evidence. With over 2 feet of water and paper stock covering the pit floor, where the, gate was, so that the gate itself was under water, it cannot be held negligence as matter of law for employés to try to keep off the pit) floor, even if they had to step or support themselves on this pipe above, or spout. Nor do we think the defendant is excused in this respect, as matter of law, by some evidence in the case that it had provided rubber boots for use in this pit and ladders for going down. There is no evidence that the use of the ladder would have obviated tibie necessity or convenience of getting on. the pipe to open the gate, j and the evidence is at least uncertain as to whether there were any boots at hand at the time; the man in charge of the beater room saying I that he did not know, but did not think the boots were there. But, whatever may have been the fact, it was apparently not the custom to úse them. W.e accordingly think it was a question of fact for the ju|-y as to whether, under all the circumstances, defendant was negligent in failing to guard this belt.

[2] Respondent further claims that deceased] was a mere volunteer at the time of his death; that he was a machine tender only, and consequently had no business in the pit at this timel There is no evidence in the case exactly defining the duties of deceased; but the evidence as to what he actually did shows clearly that even subsequent to the time he became machine tender he did other work about the mill in connection with repairs. Furthermore, it appeared to be customary for him, if there was trouble in the beater room and his stock was getting low, so that he would have to shut his machine down, to go to the beater room to help locate the trouble. On all such occasions, and particularly at the time of the accident, iiji view of the fact that his machine was dependent for its supply of material upon the product of the beater room, and that a shut-downj there would result in his machine running out of material, we think it cannot be said as matter of law that he was acting outside of his ¡duties, especially when

Judgment of nonsuit and for costs reversed, and a new trial granted, with costs to abide the event.

Judgment reversed, and new trial granted, with costs to appellant to abide event. All concur.