Mull v. Curtice Bros.

Adams, P. J.: We think the decision of the trial court must be sustained upon at least two grounds, and, in reaching this conclusion, we assume [563] that there was sufficient evidence to warrant a jury in finding that the plaintiff’s contention that the belting which operated the machine in question was so defective as to admit of its shifting itself from one pulley to the other was well founded. This defect, however, was a perfectly obvious one and one which had existed for a long period of time. The plaintiff herself testified that for at least three months prior to the accident the shifter failed to hold the belt in position, and that some four weeks prior to the accident she called the attention of the foreman to the manner in which the machine operated; that the foreman directed her to have the machinist repair the defect, and that the latter, after looking the machine over, said he had not time to fix it then but would do so when he could find the time. In these circumstances we think it must be held that the plaintiff assumed whatever risk attended the operation of the machine with the belting in the defective condition she described; for, as we have seen, with full knowledge of such defect and of the defendant’s failure to remedy the same, she continued to operate the machine regardless of the danger which threatened her. And, if this be so, there is nothing in the Labor Law (Laws of 1897, chap. 415, § 81, as amd. by Laws of 1899, chap. 192) which relieves the plaintiff from the consequences of her own voluntary act, for, as has been well said in a recent case, “ there is no reason in principle or authority why an employee should not be'allowed to assume the obvious risks of the business as well under the Factory Act* as otherwise.” (Knisley v. Pratt, 148 N. Y. 372, 379.) But, if there were any doubt as to the correctness of this proposition, we think it entirely clear that the plaintiff’s injury was attributable, in part at least, to her own negligence. As has been stated, she had been engaged in cleaning the machine at the time of the accident, to accomplish which she had taken it apart, and then, for some reason which does not clearly appear, she attempted to readjust the various parts, although Ludwig, her principal witness, testified that this was no part of her duty, but that it was his business to put the machines together after they had been cleaned. This witness also testified that, for the purpose .of wash [564] ing the outside of the machine, it was not necessary to place the screw or pin in position, and that he never put his hand in the hopper while readjusting the various parts of the machine. It seems, however, that the plaintiff, after replacing the screw, attempted to pull it out, and, finding that it did not yield readily to her exertions, put her left hand into the hopper to push it out, when, as she says, “the machine started to run” and her fingers were caught. There seems to be no question but that the belt was upon the loose pulley while the plaintiff was engaged in cleaning the machine, but the plaintiff insists that the screw did not revolve until she attempted to push it out in the manner above indicated, and the witness Smith testified that when he came to the plaintiff’s assistance he found the belt running upon both pulleys, meaning, doubtless, that it was partly upon the tight pulley. We, therefore, have this condition of affairs established by evidence which is practically uncontroverted: The plaintiff was engaged in the performance of work which was not within the line of her duty, in attempting to accomplish which she placed her hand in the hopper of the machine, knowing that if the belt which was then upon the loose pulley should shift itself onto the tight pulley, as it had frequently done before, the screw or knife would revolve, with sufficient force and rapidity to cause the injury of which she complains. She testified, it is true, that she had never known the belt to thus shift when the machine was apart, but this circumstance does not in our opinion relieve her from the charge of contributory negligence, for although some parts of the machine had not been replaced, the screw was in its proper position, and she would have us understand that it was because of the force she exerted in her attempt to push it out of position that it was set in motion. We do not quite perceive the reason for this contention, but in any view that may be taken of the case, it is difficult to resist the conclusion, that the plaintiff’s injuries were due quite as much to her own negligence as to that of the defendant, and such being the case, it follows, of course, that she cannot recover. (Schulz v. Rohe, 149 N. Y. 132; Hartwig v. Bay State S. & L. Co., 118 id. 664.) McLennan, Spring, Williams and Hiscook, JJ., concurred. Judgment affirmed, with costs. Footnotes [*] Laws of 1886, chap. 409, § 12, as amd. by Laws of 1890, chap. 398.— [Rep.