Oszkoscil v. Eagle Pencil Co. — 25 N.Y. St. Rep. 925

Majority

p. 925

Helen Julia Oszkoscil, App’lt, v. Eagle Pencil Company, Resp’t.

(New York Superior Court, General Term,

Filed June 28, 1889.)

Headnote

Master and servant—When servant assumes risks of employment.

An employee, in accepting or continuing in service with a knowledge of the character and position of the machinery, the dangers of which are apparent, and from which he may be liable to receive injury, assumes the risk incident to the employment, and the fact th-it he is a minor does not change the rule.

p. 926

Appeal from judgment entered Upon the dismissal of plaintiff’s complaint at a trial term.

Hays & Ch-eenbaum, for app’lt; Stine & Qalman, for def’t.

No evidence was adduced at the trial of any defect of, want of repair, or secret danger in the machinery complained of.. The machinery appeared to have been in every way suitable and adequate for the purposes for which it was used. Whatever danger there was arose from coming into contact with some one of the. parts while in motion. But all the parts of the machinery and their movements, were ■ fully exposed to view. Under these circumstances, and the plaintiff having been engaged upon said machinery for some time, a specific instruction by the employer to the plaintiff not to permit her hand to be caught between the moving machinery was unnecessary, and the absence of such an instruction constitutes no ground of liability. An employee, in accepting or continuing in service with a knowledge of the character and position of the machinery, the dangers of which are apparent, and from which he may be liable to receive injury, assumes the risks incident to the employment, and the fact that he is a minor, does not change the rule. Upon the principle laid down and enforced in Hickey v. Taaffe ( 105 N. Y., 36 ; 6 N. Y. State Rep., 426), the complaint was properly dismissed.

The judgment should be affirmed, with costs.