Opinion
February, 1914.
Plaintiff's reaching his arm beneath the belting and along the face of the revolving pulley to apply a cling material, so as to make the pulley engage the belting, was incurring needlessly the obvious risk of his arm being drawn into the pulley. His own testimony, therefore, showed that plaintiff was not "in the exercise of due care and diligence at the time," within Labor Law (§ 200), so that at the close of the whole case defendant might properly have moved for the direction of a verdict. Although contributory negligence did appear still it is not stated that the case as settled contains the exceptions taken by respondent. Hence, under Finney v. National Fire Proofing Co. ( 153 App. Div. 1; 208 N.Y. 625), the proper disposition is to grant a new trial, and not direct final judgment under section 1317 of the Code of Civil Procedure. The judgment and order denying a new trial are, therefore, reversed and a new trial granted, costs to abide the event. Thomas, Rich, Stapleton and Putnam, JJ., concurred; Jenks, P.J., not voting.