John Welch, Appellant, v. Waterbury Company, Respondent

John Welch, Appellant, v. Waterbury Company, Respondent. Second Department, April 7, 1911. Master and servant — negligence — Employers’ Liability Act — defective notice — assumption of risk. Where a notice under the Employers’ Liability Act in regard to the place and cause oí the injury states merely “ That because of the greasy and slippery and defective condition of the floor around and about the machine ” at which plaintiff was at work, “ he slipped and his left hand was caught in said machine, thereby amputating three fingers,” and that defendant failed to furnish proper and sufficient lights at the place where plaintiff was working, while the evidence shows that the accident occurred at a place remote from plaintiff’s machine and upon an entirely different one, he is not entitled to the benefits of the Employers’ Liability Act. Where plaintiff, who had been working in the shop for more than a year, knew that there were no drip pans or oil cups on the machines, as there were on similar machines in other factories, and that because of their absence the oil spurted from the machines to the floor, making it slippery, he assumed the risk of using the machines in that state and the slippery condition of the adjoining floor.. So, too, where he knew that, for more than a month before, a skylight near the place of the accident, where he went twice each day, had been partially obscured, and that the only light came from a gas jet which was always turned low, he assumed the risk incident to defective lighting. HirschberGv, J., dissented. Appeal by the plaintiff, John Welch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 28th day of April, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 2d day of May, 1910, denying the plaintiff’s motion for a new trial made upon the minutes. Martin T. Manton, for the appellant. Charles Capron Marsh, for the respondent. [MAJORITY — Burr, J.:] Burr, J.: The notice which was served in this case, referring to the place and cause of plaintiff’s injury, stated : “That because of the greasy and slippery and defective condition of the floor around and about the rhachine at which he was at work, he slipped and his left hank was caught in said machine, thereby amputating three fingers and part of said hand. ” There is also the statement that defendant failed to furnish proper and sufficient lights to light the place where plaintiff was at work. The evidence shows that filie accident occurred at a place remote from the machine fiponlwhich plaintiff was employed and upon an entirely different majchine. There is no proof in the case of the time of the service of the notice, but if we waive that, since that does not seem to have been stated as a ground of objection to its reception in evidence, we. think that it .is not sufficiently definite as to the place and cause of the injury.to entitle plaintiff to the benefits of the ¡Employers’ Liability Act. (Welch v. Waterbury & Co., 136 App. Div. 315; Valentino v. Garvin Machine Co., 139 id. 140.) When this case was before this court upon a previous- appeaj (136 App. Div. 315) plaintiff’s counsel then asked that the acijion be treated as one at common law. Thus considered, it was [determined that a judgment for plaintiff could not be sustained because the evidence established that' the greasy and slippery condition of the floor of the passageway where plaintiff fell was tin obvious risk which he had assumed. So. far as the condition Of the floor is concerned, and plaintiff’s •knowledge of the same, [the evidence does not materially differ - from that given upon the former trial.. In only two respects does plaintiff’s counsel contend that any difference exists. He claims now, first, that there is evidence in the case which was not. in the case on the former trial, to the effect that the place of the accident was extremely dark, that the gas jet was .turned low, and that the skylight above was broken, the window panes having been broken out, and that bagging and burlap had been placed in the skylight windows at least á month before, in order to exclfi.de the elements; second, thát there was evidence offered to show that in other factories, prior to the time of the happening of the accident, where strand machines or machines similar to the one in which the plaintiff was caught were used,, a drip pan orj oil cup was used to catch the oil, and thus prevent it from flowing out on the floor near the machine.. As to the latter, if we concede'that the evidence establishes all that counsel claims that it does, it does not meet the principal difficulty which was considered fatal upon the former appeal. Plaintiff knew of the' absence of these drip pans and oil cups, and that by reason thereof oil spurted out from the machines during all of the time that he was employed in defendant’s factory, and working on these machines, which was for a period of more than a year. If the omission to have these cups or pans was a defect in the machine, it was one patent and obvious to plaintiff, the effect of the omission was perfectly well known to him, and' he must be deemed to have assumed the risk consequent upon the use of the machines and the passageways adjoining them in that condition. So with regard to the claim that the passageway down which he was passing when he was hurt was dimly lighted. It appeared that this passageway was lighted in part by gas jets and in part by a skylight. About a month before the accident, as testified to by one of the witnesses for plaintiff, one or more panes of glass had been broken out from the skylight, and he had placed tar paper there. Plaintiff had passed through this passageway at least twice a day during all the time that he was employed in defendant’s factory. As it was open to the observation of every one he must have observed it, or be chargeable with the consequences of his omission to observe the same. With regard to the artificial light, there is no claim that the gas was burning less brightly on the day of the accident than was usually the case. As the principal witness for plaintiff said: “The light was always turned down there, so that it was about the same light for two months before the accident as it was at the time of the accident; * * * that was the condition the gas was each day, it had to be. During all the time that I worked there. ” Following, therefore, the rule laid down when this case was • previously before this court, we must hold that whatever risks there were arising out of this condition were obvious and known to the plaintiff, that he assumed the same, and for that reason is not entitled to recover. The judgment and order appealed from must be affirmed, with costs. Jenks, P. J., Thomas and Carr, JJ., concurred; Hirsohberg, J., dissented. Judgment and order affirmed, with costs.