Theresa Krug, as Administratrix, etc., of Martin Krug, Deceased, Respondent, v. American Sugar Refining Company, Appellant

Theresa Krug, as Administratrix, etc., of Martin Krug, Deceased, Respondent, v. American Sugar Refining Company, Appellant. Second Department, June 7, 1907. Master and - servant — injury by falling into vat — assumption of risk. One employed in a sugar refinery to give signals at night who;. during a time when the electric lights are temporarily extinguished, attempts to cróss. a room where he knows that vats containing revolving rollers are in operation; assumes the risk of falling' into, the vat, and cannot recover forinjunessp. received. ". -. . ■ Appeal by the defendant, the- American Sugar Keñning Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of March, 1906, upon the verdict of a jury for $2,250, and also from an order entered' in said clerk’s office on the 8th day of March, 1906, denying the defendant’s motion for a neúi trial made upon the minutes. Frederick B. Campbell, for the appellant. Frank Herwig [August P. Wagener with him on the brief], for the respondent. [MAJORITY — Kioh, j.:] Kioh, j.: The plaintiff’s intestate had been employed in defendant’s sugar refinery eighteen years. His usual place of employment was on the second floor of one of the buildings,- and one of his duties was to walk through the mixer room on the first floor,'a distance of about eighty feet, twice of three times during the night,, to a place where he had to give some signal hy blowing a whistle. In going to this place it was necessary for him to pass close to a vat in which revolving rollers were operated; they were used for mixing sugar by crushing the large lumps and pieces. The top of this vat was level with the surface of the floor, and except when in operation it was covered by a grating. The room in which the accident happened was lighted by electricity. Shortly after midnight deceased started for the signal post. As he entered the mixer room the electric lights flickered and went out, leaving this room in darkness. Plaintiff’s intestate was familiar with this place and the manner of the operation of the machinery, and he must have known that in the event of his making a slight miscalculation in the direction he was attempting to go, there was nothing to, prevent' his walking into these rollers. There was evidence tending to show that he was expressly warned of the danger at the time, but this was unnecessary ; he knew it, and yet with no urgent necessity for his attempting to cross this dangerous place in the darkness he saw fit to do so. In doing this he assumed the risk incident to the dangerous situation in which he placed himself, and the plaintiff cannot .recover. • (McLaughlin v. Manhattan R. Co., 111 App. Div. 254; Crown v. Orr, 140 N. Y. 450; Burns v. Nichols Chemical Co., 65 App. Div. 424.) The judgment and order must be reversed and a new trial granted, costs to abide the event. Jerks, Hooker, Gaynor and Miller, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.