Opinion
December 30, 1910.
E. Clyde Sherwood [ Frank Verner Johnson with him on the brief], for the appellants.
Burton C. Meighan, for the respondent.
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.