Opinion
June 7, 1907.
Frederick B. Campbell, for the appellant.
Frank Herwig [ August P. Wagener with him on the brief], for the respondent.
The plaintiff's intestate had been employed in defendant's sugar refinery eighteen years. His usual place of employment was on the second floor of one of the buildings, and one of his duties was to walk through the mixer room on the first floor, a distance of about eighty feet, twice or three times during the night, to a place where he had to give some signal by blowing a whistle. In going to this place it was necessary for him to pass close to a vat in which revolving rollers were operated; they were used for mixing sugar by crushing the large lumps and pieces. The top of this vat was level with the surface of the floor, and except when in operation it was covered by a grating. The room in which the accident happened was lighted by electricity. Shortly after midnight deceased started for the signal post. As he entered the mixer room the electric lights flickered and went out, leaving this room in darkness. Plaintiff's intestate was familiar with this place and the manner of the operation of the machinery, and he must have known that in the event of his making a slight miscalculation in the direction he was attempting to go, there was nothing to prevent his walking into these rollers. There was evidence tending to show that he was expressly warned of the danger at the time, but this was unnecessary; he knew it, and yet with no urgent necessity for his attempting to cross this dangerous place in the darkness he saw fit to do so. In doing this he assumed the risk incident to the dangerous situation in which he placed himself, and the plaintiff cannot recover. ( McLaughlin v. Manhattan R. Co., 111 App. Div. 254; Crown v. Orr, 140 N.Y. 450; Burns v. Nichols Chemical Co., 65 App. Div. 424. )
The judgment and order must be reversed and a new trial granted, costs to abide the event.
JENKS, HOOKER, GAYNOR and MILLER, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.