Ernestine Baumann, as Administratrix, etc., of Herman Baumann, Deceased, Respondent, v. Olga J. C. Schrumpf and Frederick Lampert, Composing the Firm of Robert Soltau & Co., and Others, Appellants

Ernestine Baumann, as Administratrix, etc., of Herman Baumann, Deceased, Respondent, v. Olga J. C. Schrumpf and Frederick Lampert, Composing the Firm of Robert Soltau & Co., and Others, Appellants. Second Department, December 30, 1910. Master and servant—negligence —assumption of risk. Where it appears that a foreman in a factory having had charge and superintend, ence for nearly seventeen years knew that an opening in the floor containing a revolving wheel, was unguarded, and was injured by falling into the hole, either by reason of slipping upon a greasy floor or because-he lost his balance while adjusting a rope upon a moving wheel, a finding by the jury that he did not assume the risk is against the weight of evidence and a judgment in his favor will be reversed. . Appeal by the defendants, Olga J. C. Schrumpf and another, composing the firm of Eobert Soltau & Co., and others, from a judgment of the Spreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 17th day of April, 1909, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 20th day of May, 1910, denying the défendants’ motion for a new trial made upon the minutes. . E. Clyde Sherwood [Frank Verner Johnson with him on the brief], for the appellants. Burton C. Meighan, for the respondent. [MAJORITY — Rich, J.] Rich, J. . This is an action to recover" damages for the death of plaintiff’s intestate, alleged to have been caused in consequence of defendants’ negligence in failing to properly guard a machine upon which the deceased was working at the time of his injury. Decedent was a foreman in defendants’ employ, having charge, and superintendence of the factory in which he was killed. He had been in .defendants’ service for seventeen years, and during the greater portion of the time had been the foreman in charge. The accident occurred while he was engaged in adjusting a rope upon, a moving wheel connected with a machine known as “ calendar No. 3” by slipping upon a greasy floor, or because of losing his balance in handling the rope — one or both — and he fell into an opening or pit in the floor in which the wheel revolved, and which was in the same condition in which it had been used by himself or under his direction for more than twelve years. The finding of the jury that plaintiff’s intestate did not assume the risk incident to his employment is so clearly against the weight of evidence as to require a reversal. (Baker v. Empire Wire Co., 102 App. Div. 125, 129; Vaughn v. Glens Falls Cement Co., 105 id. 136.) The judgment and order must be reversed and a new trial granted, costs to abide the event. Jenks, Burr, Thomas and Carr, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.