Bond v. Smith — 39 N.Y. St. Rep. 124

Majority

p. 124

William L. Bond, App’lt, v. Edward C. Smith et al., Resp’ts.

(City Court of Brooklyn, General Term,

Filed June 22, 1891.)

Headnote

Master and servant—Open and apparent risks are assumed by servant.

Where the risks of the absence of a guard upon a dangerous machine are open and apparent, and the servant had full opportunity to acquire a knowledge of its management, he must be held to have assumed such risks.

Appeal from a judgment for defendants rendered at a trial term.

Magner & Hughes, for app’lt; A. T. Payne, for resp’ts.

—This action was brought to recover damages for injuries sustained by the plaintiff while in the employ of the defendants. The plaintiff was at work at the time on a machine called a “jointer.’’ The machine contained a cylinder on which were two knives which revolved at the rate of four thousand times per minute. The table consisted of two iron plates with a space of two inches between them, where the cylinder and knives were. There are other details about the machine which need not be described.

The plaintiff had worked on the machine for six weeks prior to his injury, and in that time had full opportunity to acquire a knowledge of its management. Whether he was properly instructed in the beginning is immaterial. The machine was simple and easily understood. It was not necessary to instruct him to be careful not to allow his hands to touch the knives when in motion. The plaintiff says that he attempted to plane a board with a knot next the knives; that as the knot struck them it came out; in that way his hand was thrown off the board and came in contact with the knives.

It is claimed by the counsel for the appellant that a board could be and ordinarily was used to cover the knives. The question is presented whether, conceding that a guard can be used on a dangerous machine, it is necessary for the master to provide one, and if he fails so to do, be deemed negligent This point has recently been decided by the general term of this court, Plunkett v. Donovan, 36 N. Y. State Rep., 91, and we have discovered no authority or reason why our views should be changed. The case of Sweeney v. Berlin & Jones Envelope Co., 101 N. Y., 520 , is directly in point. The employee assumes the risk of a machine, provided its dangers are open and apparent. See also Hickey v.

p. 125

Taaffe, 105 N. Y., 26 ; 6 N. Y. State Rep., 426. The case cited by the appellant, McGovern v. Central Vt. R. R. Co., 123 N. Y., 280 ; 33 N. Y. State Rep., 416, is in point as to-the duty of the master to provide a place reasonably safe for the servant' in the performance of his work. It-is not in point on the question of the duty of the master in, providing safeguards on dangerous machines. The McGovern case has been distinguished by the court of appeals in Cullen v. Norton, 36 N. Y. State Rep., 359.

The defects in the bed of the machine were trivial, as it appears ■ to have been in the ordinary and usual condition after use. Such defects in no way caused the injury to plaintiff. -It is conceded that the plaintiff knew that there was a knot in the board before it touched the knives, and must have had some prior kntiwledge that a knot might come out as the board passed over the machine.

Judgment affirmed, with costs

Osborne, J., concurs.