Jennie Match, Respondent, v. Polygraph Printing Company, Appellant

Jennie Match, Respondent, v. Polygraph Printing Company, Appellant. Second Department, November 24, 1911. Master and servant — negligence — injury to boy by printing press — assumption of risk. Where in an action by a mother to recover for loss of the services of her son, a boy sixteen years old, it appears that the boy was employed in a printing establishment; that as he was walking between the presses in the course'of his duties his foot slipped on an oily spot on the floor and that as he instinctively threw out his hand it was • caught in the gears of a press which had been left unguarded, in violation of section 81 of the Labor Law, a judgment for the plaintiff will be affirmed. . The son by remaining in defendant’s employ "with knowledge, or with the means of knowledge, of the fact that the gears on the press were unguarded, did not thereby assume the risk of injury therefrom. Appeal by the defendant, the Polygraph Printing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office óf the clerk of the county of Kings on the 13th day of June, 1910, upon the verdict of a jury for $685, and also from an order entered in said clerk’s office on the 15th day of June, 1910, denying’ the defendant’s motion for a new trial made upon the minutes. William A. Jones, Jr., for the appellant. Joseph Gans, for the respondent. [MAJORITY — Hirschberg, J.:] Hirschberg, J.: The plaintiff has recovered a small judgment for the loss of her son’s services and for medical expenses incurred by her in consequence of injuries sustained by him while in the employ of the defendant. The accident occurred at dusk on the afternoon of November 9, 1906, and resulted in the loss of two fingers of the boy’s left hand. He was not quite sixteen years of age at the time, but his employment then was not unlawful. He was at work in a loft where the defendant had installed a row of mechanically operated printing presses, on one of which the boy had been working as a press feeder. The verdict of the jury establishes on sufficient evidence that after the boy had finished his work at the press he started to walk up the line of the presses to get further orders from the foreman; that it was quite dark; that an oily spot upon the floor caused him to slip; and that, instinctively putting out his hand as he was falling, the hand was caught in the uncovered gears of a press, and the fingers taken off before the press could be stopped and his hand released. The evidence of'negligence on the part of the defendant and of freedom from contributory negligence on the part of the boy seems to have been sufficient to carry the case to the jury. It is provided by section 81 of the Labor Law (Laws of 1909, chap. 36) that “All * *. * cogs, gearing, * * * set-screws and machinery, of every description, shall he properly guarded. ” The appellant insists that the plaintiff’s son assumed the risk incident to his employment arising from the fact that the cogs, wheels and gearing of the press were unguarded, by remaining in the defendant’s employment with knowledge or the means of knowledge of that fact; and it relies upon a line of authorities of which Knisley v. Pratt (148 N. Y. 372) is the leading case. The more recent case of Martin v. Walker & Williams Mfg. Co. (198 N. Y. 324) was decided at about the time of the trial herein and would seem to he controlling in the present instance. In that case a boy, .sixteen years of age, approaching a machine for the purpose of wiping oil from it with waste cotton, slipped on account of oil that had dripped onto the floor therefrom. As he fell forward his hand was caught in the machinery. The court held that the machine was a dangerous one; that it was practicable to cover it; that to cover it was a part of the defendant’s duty under the section of the Labor Law just cited; that if such duty had been discharged the injury would not have occurred; and that the facts stated justified a recovery. The court said (p. 327): “We thus have it established by the verdict that the plaintiff was not guilty of contributory negligence; that he was a young boy but sixteen years of age, who, prior to his arrival at that age, was absolutely prohibited by the statute from being employed or permitted, to operate or assist in the operation of a dangerous machine of any kind; that he was directed by the superintendent in charge to take waste to defendant’s machine" while it was in motion, and before the hell had rung for its stopping, so that he could proceed with the cleaning of the machine as soon as the bell rung and the machine stopped; and that as soon as he did approach the machine and stepped upon -the platform his foot slipped, on account of the oil that had dripped thereon, causing him to fall forward and thrust his hand onto the lickerin; that the machine was a dangerous machine and that it was practicable to cover it, and that it was the duty of the defendant so to do; and had the- defendant performed its duty in this respect the injury would not have occurred. These are the facts that the jury are deemed to have determined by their verdict, and these are the facts which the Appellate Division is deemed to have approved by the order which it has entered. Such being the case we are of the opinion that the facts justified a recovery.” The judgment and order should be affirmed. Jenks, P. J., Thomas and Carr, JJ., concurred; Burr, J., concurred in result. Judgment and order unanimously affirmed, with costs.