Annie Moskewict, Appellant, v. D. Allen's Sons' Rope Company, Respondent

Annie Moskewict, Appellant, v. D. Allen's Sons' Rope Company, Respondent. Second Department, November 22, 1912. Master and servant — negligence — injury'to operator of rope machine — dismissal of complaint — duty of master under Labor Law to guard machinery. • Plaintiff, who was operating two of defendant’s machines for making ' rope, installed in a single frame, stopped one of them and commenced cleaning it, permitting the other to continue in operation, and while so engaged one of her hands came in contact with a nut upon the end of a revolving shaft with a disc end, and two of her fingers were injured. The two machines had a space of about four inches between the revolving discs in which there was a board partition, and it was not necessary for the plaintiff to place her hand near the operating machine while cleaning the other one. Held, that the defendant was not liable for the injuries to plaintiff and that a dismissal of the complaint was proper. The proper guarding of machinery under the provisions of the Labor Law does not require the master to make it impossible that an accident shall occur; it is only where' it is practicable and where an accident is reasonably to be anticipated that the master is required to guard machinery. Under the above circumstances it was neither practicable to provide a more efficient protection, nor reasonable to anticipate an accident. Appeal by the plaintiff, Annie Moskewiot, 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 3d day of July, 1911, 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. Edward G. Nelson, for the appellant. E. Clyde Sherwood [Joseph F. Murray and Amos H. Stephens with him on the brief], for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff has lost two of her fingers in an accident at the defendant’s factory, and she seeks to recover damages therefor. The plaintiff could not read or speak English. She applied for a position through a Mrs. Sinkevich, a former employee of the defendant, and was put to work under the instructions of Mrs. Sinkevich, who taught her how to start and stop the machine used in the making of rope, and then told her to watch the other girls, and to follow their example. Subsequently the plaintiff was sent to another floor of the factory to operate a similar machine, differing in some of its details, and there she was further instructed in the operation of the machine by one of the young women employed there, and for a period of five or six weeks she had been performing the work without mishap. On thé 19th day of March, 1907, the plaintiff, who was then operating two machines in a single frame, stopped one of them, permitting the other to continue in operation, and commenced cleaning the same, as required by the regulations of the factory, and while so engaged one of her hands came in contact with a nut upon the end of a revolving shaft with a disc end, and as a result two of her fingers were injured .so that they were subsequently amputated. The two machines, contained in a single frame, had a space of about four inches between these revolving discs, and in this space of four inches there was a board or partition separating the same, and the contention here seems to be that the defendant was in some manner negligent in respect to this nut upon the end of a bolt fastening the disc to the revolving shaft. There is no claim that the machine was improperly constructed, or that it was defective, and there is no evidence which in any manner indicates that the defendant had any reason to anticipate that any one would come in contact with this nut. There was a partition between the machine in operation and the one which had been stopped, and this disc on which the nut protruded was being operated at about 1,500 revolutions per minute, on the opposite side of the partition from the machine which the plaintiff was engaged in cleaning, so that there was. no opportunity for her to be injured by this nut, except when her hand was placed in the far side of the partition. It does not appear from the evidence that she was called upon to place her hand near the operating machine in the performance of any of the operations of cleaning the machine, which had been stopped, and it is conceded upon the record that what the plaintiff was doing at the tune, cleaning one machine while the other was left in operation, wás proper practice, so that it is difficult to understand upon what possible theory-the defendant could have been negligent. The proper guarding of machinery under the provisions of the Labor Law (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 81, as amd. by Laws of 1906, chap. 366) does not require the master to make it impossible that an accident shall occur; it is only where it is practicable and where an accident is reasonably to be anticipated that the master is required to guard machinery, and clearly where a machine is duplicated in a single frame, and there is a partition between the disc ends of revolving shafts, in a space of four inches, and it is not made to appear that there is any requirement that the operator shall intrude his hand into a space of less than two inches while the particular machine is in operation, it .would not seem either practicable to provide a more efficient protection, or reasonable to anticipate an accident. The end of the revolving shaft appears to; have been properly protected. So long as the plaintiff confined herself to the cleaning of the machine which she had stopped for that purpose and did not go beyond the guard board or partition, she .was perfectly safe. She knew that the other machine was running; she was familiar with its construction and knew the nut was upon the revolving disc, and if she carelessly inserted her hand between the partition or guard board, where she was not called upon to do so, we are unable to see any reason why the master should be called upon to pay her damages under the laws of this State. The judgment appealed from should be affirmed, with costs. Present — Jenks, P. J., Burr,. Thomas, Woodward and Rich, JJ. Judgment unanimously affirmed, with costs.