Jonathan Horton, Respondent, v. The Vulcan Iron Works Company, Appellant

. Jonathan Horton, Respondent, v. The Vulcan Iron Works Company, Appellant. Negligence — rule as to a safe place of employment — application of § 8 of chap. 673 of 1893 — what risk the servant assumes. • In an action based upon the alleged negligence of a corporation, it appeared that the plaintiff, for the purpose of continuing a wall, which he was constructing for one Holbrook upon Holbrook’s property, ten feet north of the north boundary line of the defendant’s premises, built a scaffold, whose floor was two or three feet below a shaft which extended from the north wall of the defendant’s machine shop to within a few inches of the wall in question, at a distance ■ of more than twelve feet from the ground. While upon the scaffold, and stooping to pass under this shaft for his own greater convenience, the plaintiff was caught by an unguarded set screw at the end of the shaft, which was making fifty revolutions, a minute, whirled around and injured. Held, that the plaintiff was guilty of contributory negligence; That the doctrine that the master must furnish the servant a safe place in which. to work had no application to this case, as the relation of master and servant did not exist between the defendant and the plaintiff; That the provisions of section 8 of chapter 673 of the Laws of 1893, requiring that' set screws should be properly guarded, only imposes upon owners the exercise of reasonable care and prudence in keeping their property in such condition that those who go upon it shall not be unnecessarily exposed to danger; and that, in the present case, it could not be said that there was a probability of danger from a set screw at the end of a shaft which was more than twelve feet above the ground;; That as the plaintiff could see that the shaft was in motion, he assumed the risk of the situation when he tried to pass beneath it. defendant, The Vulcan Iron Works Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the dbfk of the county of Oswego on the 18th day of February, 1896, upon\the verdict of a jury for $5,000, and also from an order bearing date itf® 22d day of February, 1896, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. \ Plaintiff received injuries on the 28th day of June, 1895, while at work laying up a brick wall which hé and jne Petrie had agreed to erect in consideration of the price of four dollars and fifty cents per thousand brick, in a block situated at the corner of Bridge street and West Second street in the city of Oswego. The wall was to be erected from the east side of Second street westerly about fifty feet to divide the premises owned by one Holbrook from premises owned by the defendant. South of the wall some ten feet commenced the premises of the defendant, and upon its premises were situated a machine shop in which was a shaft upon which were pulleys and collars, and in the northerly pulley on the shaft was a collar in which was a set screw some five-eighths of an inch square and the end set out seven-eighths of an inch. The shaft in the defendant’s building extended north and south at right angles to, and came within a few inches of, the line of the brick wall plaintiff was laying up. In the complaint it is alleged: “ That as plaintiff was passing under said shaft, in pursuance of his employment his clothing caught on said set screw or bolt, and said shaft, being in rapid motion, was whirled about said shaft and most seriously injured by being dashed against the -beams, posts and pieces of timber in close proximity to said shaft.” The plaintiff alleges that the accident was caused through the negligence of the defendant, and that the injuries which he sustained were inflicted without any negligence or fault on his part. ' The answer, among other things, alleges that the injuries received by the plaintiff were “ solely by reason of and through his own carelessness and negligence; and that by reason of such carelessness and negligence, which so caused and'contributed to such injury and accident, the plaintiff cannot recover in this action.” At the close of the plaintiff’s evidence the defendant moved for a nonsuit on several grounds. The motion was denied and an exception was taken. D. P. Morehouse, for the appellant. L. W. Baker, for the respondent. [MAJORITY — Hardin, P. J.:] Hardin, P. J.: From the evidence it is quite clear that Holbrook owned the premises where the wall was being constructed, although the same had been for some considerable period of time in the possession of the defendant. Holbrook entered into an agreement with the plaintiff and his partner, Petrie, to perform services in the erection of a wall at the price of four dollars and fifty cents per thousand brick. They commenced the erection • of the wall, and after it had progressed so as to require a platfor'm to work upon they built a platform or scaffold on the. south side of the wall next adjacent to the property of the defendant. It appears that when they commenced the'erection of the wall Holbrook remonstrated with them very strongly against building a scaffold on the south side of the wall, insisting that it would interfere with the. business of the defendant, and expressed his strong desire to have them build a scaffold on the north side of the wall. However, they persisted in using the south side for the erection of the scaffold. After they had erected the wall so far as was convenient by means of the first scaffold, they erected a second one, which came within some two and a half feet of the shaft, and they placed runways from the scaffold' in a southerly direction into the premises of the defendant. The business of the defendant was in progress, and it was in daily use of the machinery in' its building, using the shaft for the purpose of propelling the same during the whole period of time that the plaintiff and his partner were engaged in the erection of the wall. Prior to the commencement of the erection of the brick wall the plaintiff and his partner had erected a foundation wall of stone under a contract to do the same for $284. The contract for the erection of the brick wall was made with Holbrook.- It was not in writing. At the time they commenced the erection of the wall the premises north of it were vacant and there was an entrance to the property from Bridge street. It appears that when Holbrook remonstrated with them for using scaffolds bn the south side instead of on the north side, they replied:. “ It would be more trouble to scaffold it, to put up a scaffold there ; they could build on the scaffold with very little scaffolding; they insisting upon building on that side.” ' Petrie testifies : “ It would have been possible to have had one mason work on the east side of the shaft and another work from the west side to him and not have anybody pass under there. We didn’t lay this wall from the north . side because it would have cost about $10 more for building the scaffolding, and it was the handiest to lay it on the side we laid it on.” Evidence was given tending to show that neither Horton, nor Petrie nor any one in their behalf ever requested the defendant to stop the shaft. Seeber, an architect, who prepared the diagrams that were used in evidence, testified : “ The distance from the bottom of the post to the shaft is 12 feet 6 inches as I remember it. The shaft is two and one-half inches in diameter. The shaft is about 8 inches from the post. The outer pulley on this shaft is 18 inches in diameter.” The witness King testifies : “ I saw Mi’. Horton at a time when he was passing under this shaft. I saw him do so the same morning that he got hurt. I heard Mr. Smith speak to him in reference to doing so. Mr. Smith says, be careful going under there, you will get caught on the shaft.” This witness adds: “ You can see that set screw standing on the ground, plainly, when the shaft is revolving. At that time this shaft was revolving about 50 revolutions a minute.” Plaintiff testified that he had followed the mason business for forty-eight years, and said : “ I have had accidents before. I had one when I worked on the Syndicate block. 1 think it was due to my carelessness. I stepped upon a plank and it tipped up and I fell into the cellar. I had an accident when I built a building at Wolcott. I have had a good many of them. I don’t think I have the reputation among the masons of being rather reckless and careless in putting up scaffolds and in working around dangerous places. I don’t know as I am a little more careless in those matters than the general run of masons.” He also testifies: “ I knew there was a shaft there., * • * * Only I looked up and knew the shaft was there.” “I'passed under there of course for my own convenience in working. I had to bend .over to get under there. The shaft was. not as far up from the platform as my hip. was from the floor; I think I got down on my knees ; I got down on my knees . and crawled under ; got under that way.” It appears by the evidence that, when he was passing under the shaft, his clothing was caught and he was carried around several times until the shaft was stopped, and that he received a broken arm and a broken leg and was otherwise injured. (1) The evidence failed to establish the relation of master and servant between the plaintiff and the defendant. (Russell v. Buck hout, 87 Hun, 46; Olive v. The Whitney Marble Company, 103 N. Y. 292.) In the course of the body of the charge the learned trial judge said : “ The rule of law in regard to master and servant, if you find that that relation exists here, is, that it is the duty of the master; where he puts the servant in a dangerous place to work, to guard him against the perils and dangers of his position. That is only so, gentlemen, I will charge, with reference to the servant and the master. If you find here that the relation of master and servant existed between this defendant and this plaintiff, then you can apply that rule.” Later the court instructed the jury, viz.: “ The jury may take into consideration all the facts and circumstances in regard to this case, and find for themselves what they think the fact is in regard to his position, whether the plaintiff was there in the condition of a servant, or whether he was there and the defendant was in the position of owner or in possession of these premises-.” To- that instruction the defendant took an exception, “ and particularly to that part of your honor’s charge in which you say that the jury may find and determine as to whether or not the plaintiff was there as a servant of the defendant.” In response thereto the court said: “ I leave it to them as a question of fact.” Thereupon the defendant took an exception. Inasmuch as the evidence fails to establish the relation of master and servant between the plaintiff and the defendant, we think the exceptions present error requiring a new trial. (2) The evidence tends strongly to indicate that the plaintiff took the risk of the situation when he sought to pass under the shaft, which he knew was in motion. He had been in and about the premises a sufficient length of time to become conversant with the shaft and all-its conditions when-in motion. In Cobb v. Welcher (75 Hun, 283) it was said that, even under the Factory Act, the proprietor of a factory is not an insurer of the safety of his employees, nor does it require him “ to guard against extraordinary accidents which careful and prudent men could not foresee or anticipate as liable to occur.” In chapter 673, section 8, of the Laws of 1892 it is provided that “ all vats, pans, saws, planers, cogs, gearing, belting, shafting, set screws- and machinery of every description therein shall be properly guarded.” That statute has received interpretation in Glassheim v. N. Y. Economical Ptg. Co. (13 Misc. Rep. 174), in which case it was said: “ The owner of premises occupied for business purposes is only required to use reasonable care and prudence for keeping the property in such condition that those who go there shall not unnecessarily be exposed to danger.” In that case the belt was covered to a height of nine feet from the floor, and it was held that the machinery was properly guarded within the meaning of the Factory Act. In that case it was said: “ This shafting was suspended from the ceiling at such a height as t.o render it impossible under ordinary circumstances that an accident like this could have occurred. The court will take judicial notice that men are not nine feet high, and, therefore, without climbing up to it, there was no possibility of any danger either from the shafting or the set screw.” In Graves v. Brewer (4 App. Div. 327), where the danger was apparent, it was held that the injured party took the risk and that the liability was not changed by the Factory Act. In Knisley v. Pratt (148 N. Y. 372) it was held that “ there is no reason in principle or authority why an employee should not be allowed to assume the obvious risks of the business as well under the Factory Act as otherwise.” Although, as we have already intimated, the plaintiff was not. an employee of the defendant, we think the facts and circumstances disclosed in relation to his conduct antecedent to and concurrent with the injuries received, with the knowledge which he possessed of the shaft and presumptively of the set screw, were such that he was guilty of contributory negligence at the time he received the injuries of which he complains. The evidence found in the appeal book fails to satisfy us that he was free from contributory negligence. The foregoing views, if adopted, lead to a reversal. All concurred. Judgment and order reversed and a new trial ordered, with costs to abide the event. Sic.