Opinion
Argued March 14, 1905
Decided April 11, 1905
Frank Verner Johnson and E. Clyde Sherwood for appellant. I.R. Oeland for respondent.
As the shaft which caused plaintiff's injuries was elevated 14 or 15 feet above the floor of the defendant's factory, and could be reached only by the use of a ladder, the defendant cannot be charged with negligence under the Factory Act in failing to properly guard it. ( Glens Falls P.C. Co. v. Travelers' Ins. Co., 162 N.Y. 399.) The only ground upon which the defendant can be held liable, if at all, is that it failed in its duty to properly instruct the plaintiff before he was directed to take down the pipe upon which he was at work when injured. If the danger to be apprehended by coming in contact with the shaft was as open, obvious and apparent to the plaintiff as it was to the defendant, the latter was under no duty to instruct the former in this regard, for in that event the risk was one which he voluntarily assumed.
The plaintiff was a steamfitter of thirty years' experience, during which time he had been largely employed in machine shops where revolving shafting was in use. His testimony, taken as a whole, tends to show some knowledge of the dangers attendant upon work in proximity to revolving shafts. It shows that he deemed it necessary to exercise care in avoiding contact with the shaft near which he was at work. The testimony of his witnesses discloses that the danger was a matter of common knowledge. Prior to the accident the plaintiff was a man of at least average mental and physical capacity, who had every opportunity to observe and comprehend the indications of danger in his line of work. In the exercise of ordinary care and prudence he could not have escaped the knowledge that there was danger in permitting his clothes to come in contact with a revolving shaft. The law imposes on the servant "the duty of self protection, and always assumes that this instinct, so deeply rooted in human nature, will guard him against all risks and dangers incident to the employment or arising in the course of the business of which he has knowledge or the means of knowledge. If he voluntarily enters into or continues in the service without objection or complaint, having knowledge or the means of knowing the dangers involved, he is deemed to assume the risk and to waive any claim for damages against the master in case of personal injury to him." ( Crown v. Orr, 140 N.Y. 450; Williams v. D., L. W.R.R. Co., 116 id. 628, 634; De Forest v. Jewett, 88 id. 264; 1 Labatt on Master Servant, § 391.)
Upon the motion for a new trial the learned trial judge conceded that if the shaft had been smooth, without the keyway, he would have felt constrained to hold that the plaintiff could not recover. We think he might have gone further and have held that the presence of the keyway did not materially affect the principle here involved. Upon the evidence in the case it must be assumed that the presence of the keyway enhanced the dangerous character of the shaft, and that the plaintiff had no knowledge of the existence of the keyway. But had the defendant specifically warned him of its existence, he would only have been told that there was danger in coming in contact with the shaft, and that, as we have seen, he must be held to have understood. Where the danger is obvious and great, as in the case of a revolving shaft, it is not necessary to give warning of all the elements which serve to enhance the risk. ( Ford v. Mount Tom Sulphite P. Co., 172 Mass. 544, 545; Carey v. Boston Maine R.R., 158 Mass. 228, 231.) In Rooney v. Sewall, etc., Cordage Co. ( 161 Mass. 153) the plaintiff was injured by having a portion of his clothing caught by a set screw upon a revolving shaft. In denying a recovery in that case, the court (p. 160) said: "While the screw doubtless increased somewhat the danger of being caught by contact with the shaft, belt or pulleys, that danger was so obvious to every one, and was manifestly so great, that even the most ignorant person would endeavor to keep away from those parts of the machinery. The collar and set screw did not project much beyond the pulleys and belt, but were almost in their line of motion. Although the plaintiff says he did not know of the set screw, his testimony shows that he was well aware of the danger from moving pulleys, belt and shaft. * * * He was more than forty years of age and had had considerable experience. There is nothing in the case to indicate that he needed any warning of the danger from coming in contact with this rapidly revolving machinery, whether he knew of the set screw or not." In Connelly v. Hamilton Woolen Co. ( 163 Mass. 156) the facts were almost identical with the facts of the case at bar, and the court there said: "It is urged that there was a keyway in the end of the shaft which made it more likely to catch his clothing than a plain shaft. But the keyway was not a defect, and the shaft was in the same condition when he was hurt as when he began to whitewash the room. The danger of being caught by contact with the shaft, whether he knew of the keyway or not, was so great and obvious, that he must have appreciated and taken upon himself the risk of being caught and injured by coming in contact with the shaft. It was not necessary that he should appreciate every particular of the danger." The case of Johansen v. Eastmans Co. ( 44 App. Div. 270; affd. without opinion, 168 N.Y. 648) is not in conflict with the views here expressed, as in that case the plaintiff was concededly an inexperienced man.
For these reasons we think the judgment should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., GRAY and HAIGHT, JJ., concur; O'BRIEN, BARTLETT and VANN, JJ., dissent.
Judgment reversed, etc.