Zevin v. Goldman — 94 N.Y.S. 35

Majority

p. 35

ZEVIN v. GOLDMAN et al.

(Supreme Court, Appellate Term.

May 23, 1905.)

Headnote

Master and Servant-Personal Injuries — Negligence—Dangerous Machinery.

An employs cannot recover for injuries sustained while working on a dangerous machine, which was not out of order, where the danger was perfectly obvious, and confessedly known to plaintiff, and where it is not. shown that any precaution or device was omitted which, if applied, would have lessened the danger of using the machine.

[Ed. Note.—Eor cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 610-624.]

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by Chezkel Zevin against Jacob Goldman and another. Judgment for plaintiff, and defendants appeal.

Reversed.

Argued before SCOTT, P. J., and TRUAX and DOWLING, JJ.

Winter & Winter, for appellants.

Louis Lande, for respondent.

I am unable to find any ground upon which this judgment can be sustained. The machine upon which the plaintiff worked was undoubtedly dangerous unless care was exercised by the operator, but the danger was perfectly obvious, and was confessedly known to ¡plaintiff. The machine was not out of order. There appears to have been an attachment by way of a gouge regulating the width of board to be planed. The plaintiff attributes his accident to the failure to properly adjust this gouge, but it is not made clear- that the failure to so adjust it made the machine any more dangerous than it would otherwise have been. Possibly it imposed upon plaintiff the necessity for some greater caution, but, whatever its effect was, the plaintiff noticed the position of the gouge before he began to work. Except for the non-

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adjustment of the gouge, it does not appear that any precaution or device was omitted which, if applied, would have lessened the danger of using the machine.

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