Harry W. Freeman, Respondent, v. Dennison Manufacturing Company, Appellant

Harry W. Freeman, Respondent, v. Dennison Manufacturing Company, Appellant. Negligence — use by a wood expert of a soft-wood plate which breaks and injures him — a recovery on the theory that the master should have furnished a hard-wood plate, not sustained. A wood expert, familiar with the relative strength of hard and soft wood, who, for some nine years, has been employed in the operation of a wood sawing machine which, for a period of three years, was fitted with a plate made of soft wood, assumes the risks incident thereto, and cannot recover damages from his employer for injuries sustained in consequence of the breaking of the plate, upon the theory that the failure to furnish a hard-wood plate constituted negligence upon the part of the employer. Appeal by the defendant, the Dennison Manufacturing 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 25th day of November, 1898, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 30th day of November, 1898, denying the defendant’s motion for a new trial made upon, the minutes. Herbert C. Smyth [Edwin A. Jones with him on the brief], for the appellant. William A. Jones, for the respondent. [MAJORITY — Hatch, J.:] Hatch, J.: The negligence of the defendant which has been made to furnish the basis upon which a recovery has been had consisted in the claim that the defendant had failed to furnish a safe and suitable appliance for the use of its servant. The plaintiff ivas injured by reason of the breaking of a plate which formed a part of a table in which ran a saw used for the purpose of cutting grooves in wood. The plate wdiich was in use at the time of the accident was made of soft wood, and it is claimed that such wood was improper for such purpose and that the plate should have been made of hard wood; and in this consists the negligence for which a recovery has been had. It is disclosed by the evidence that the plaintiff had been employed in and about the work and machine upon which he received his injury for nine years prior thereto, some of the time in the capacity of a foreman and at other times as a workman. He was an expert in wood and understood the relative strength of hard and soft wood. He was entirely familiar with the plates, and had made them as occasion and necessity required. The circumstances und;er which the change from hard to soft-wood plates was had occurred about three years prior to the accident, when the superintendent of the factory told the plaintiff to make a plate of soft wood instead of hard wood.' The. plaintiff obeyed the direction and made the softwood plate. The superintendent informed the plaintiff .after the plate was finished and in place that it was as good as the hard-wood plate, and thereafter all plates were generally made of soft wood, although it is not entirely clear from the plaintiff’s testimony that it did not thereafter rest in the volition of the person who made the plates whether he should make them of hard or soft wood. But we assume, for all the purposes of this case,•, that the direction was to make the plates of soft wood. It is entirely clear that the plaintiff possessed as much information of the working of the machine upon which he was injured, and of the character of the plates which were in use and of the relative strength of hard and soft wood, as did the superintendent of the factory or any other person connected with the business. No instructions from any person could add to his information upon these subjects. The defendant had the right to use soft-wood or hard-wood plates in this machine as it chose, and if the plaintiff did not desire to use the soft-wood plates he could refuse so to do. But, inasmuch as he possessed full and complete knowledge of the entire subject-matter, if he chose to continue in the employ and make, use of such. appliances, as it was iwith full knowledge, he took the risks incident to such employment and can make no complaint for any injury which, he received on account of the same. (Sweeney v. Berlin & Jones Envelope Co., 101 N. Y. 520; Bajus v. S., B. & N. Y. R. R. Co., 103 id. 312.) It follows that there exists no basis upon which negligence of the defendant may he predicated. The judgment should, therefore, be reversed. All concurred. Judgment and order reversed and new trial granted, costs to abide the event.