#### Amelia Kirwan, an Infant, by John A. Kirwan, Her Guardian ad Litem, Respondent, *v.*American Lithographic Company, Appellant.

First Department,

February 7, 1908.

■ Master and servant — guarding machinery — warning minor — ■ unexpected danger..

Where a revolving shaft is so covered hy a table at which the operators work that there can be no possible danger to persons working at the table or engaged in the ordinary work of the establishment, the master is not Hable under section 81 of the Labor Law, as amended, requiring the guarding of shafting, for injuries to a servant who came in contact with the shafting while crawling through a narrow space inthoside of the table to pick up some of her work which had f;ilion to the floor.

*181The master is not required to warn a servant, although she is hut fourteen years of age, of the danger of coming in contact with a shaft located under the table at which she is working, where she could come in contact with it only by crawling under the table, and there was no reason for apprehending that she would do so.

Pattekson, P. J., and Laughlin, J., dissented, with opinion.

Appeal by the defendant, the American Lithographic Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 26th day óf February, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 25th day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

*EranJc Yerner Johnson,*for the' appellant.

*Eugene Lamb Richards, Jr.,*for the respondent.

Houghtojst, J.:

The plaintiff was in.the employ of the defendant at the .time of the accident; her duties were to bring printed pamphlets to the stitching table and put them in regular piles after they were stitched. ■ . .

The table at which she was at work was a little over two feet high and two* and a half feet wide, and was one of a series of tables upon which were wire stitching machines. A power shaft, by means of which the machines were operated, one inch and three-quarters in diameter, hung about four inches below the under side of the table, and ten or twelve inches back from its outside edge. There was a four-inch board along the upper edge of the table which came down to a point level with the top or the middle of the shaft. There was another board at the bottom of the table, coming up from the floor a sufficient distance to leave the opening between the bottom and top boards between ten and a half and sixteen inches, as variously described by the witnesses.

While the plaintiff was at .work some of the pamphlets which she was counting and piling fell to the floor and under the table. Plaintiff 'got down, as she describes it, upon her hands and knees and crawled through this opening between the boards to pick up tbe pamphlets. In some way her hair came in contact with the revolv*182iñg shaft above, and before the machinery could be stopped a large portion of her scalp was torn off. She was between fourteen and fifteen years of age, and as conceded upon the trial was rightfully employed.by the defendant.

' The theory of the plaintiff is that the defendant was negligent in failing to properly guard the revolving shaft under.the table¿ and also in failing to warn her of the presence of the shaft and the danger of coming in contact with it.

We think the judgment cannot be sustained on either ground.. Section.81 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1906, chap. 366). provides, amongst other things, that all “shafting” shall-be “properly guarded.” The intent of the law was to provide that those parts of the machinery which were dangerous to those whose duty required them to work in its immediate vicinity -should be properly guarded, hieither by the Labor Law nor any other are masters called upon to guard against every possible danger. They are required only to guard against such dangers as would occur to a reasonably prudent man as liable to happen. *(Glens Falls P. C. Co.*v. *Travelers’ Ins. Co.,*162 N. Y. 399, 403.)

There could be no possible danger from the shaft to persons working at the table. It was completely covered by the top of the table and the side piece. The board at the bottom was a further protection to one at work standing or sitting. So far aS the ordinary work of the establishment was concerned, contact with the shafting was completely prevented. It would be impossible to so cover the machinery of a factory that no one 'could crawl into it and be injured.

ISior was the defendant required to warn the plaintiff of the danger of coming in contact with the shaft -if she should crawl under the table. So far as appears, there was no reason why the defendant or any of its servants in charge of its various departments should apprehend that the plaintiff would get under the table for any purpose. There was, therefore, no occasion for warning her against the dangers of doing such an unexpected thing,

. The verdict of the jury, which-necessarily involved the finding either that the defendant had.failed to properly guard the shafting or to warn plaintiff of its dangerous character, is against the evidence and the weight of evidence, and must be set aside.

*183The judgment and order should - be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingraham and McLaughlin, JJ.,. concurred; Patterson, P. J., and Laúghlin, J., dissented.

Patterson, P. J. (dissenting):

I am unable to concur in the reversal of this judgment. It is undoubtedly true that employers are only required to guard machinery “against such dangers as would occur to a reasonably prudent man as liable to happen” *(Glens Falls P. C. Co.*v. *Travelers’ Ins. Co.,*162 N. Y. 404), but in this case I think, considering the nature of the work which the infant plaintiff was employed to perform and the situation of the revolving shaft, there was sufficient evidence from which the jury could draw the conclusion that this shaft should have been guarded so as to prevent persons working about it from being injured. As was said in the case cited, the necessity for the guard and the character and description of the guard must of necessity depend upon the situation, nature and dangerous character of the machinery, and in each case becomes a question, of fact.

The situation here was the following: The infant plaintiff was employed to bring unstitched' sheets of pamphlets to a table upon which were machines used in stitching or sewing them together, operated by other girls. The table was thirty inches wide and twenty-six inches high. Under the table was a revolving shaft about four inches below the table top. This table was a perfectly smooth surface with nothing at its edge to prevent the piles of unstitched material from slipping or falling therefrom.•• Underneath the surface of the table and at its edge was a board four inches deep, the edge of which came down to a point level with the top or middle of the shaft. There was nothing, however, to protect that shaft. It may have been concealed from observation, but that was all. The open space under the table and the liability of sheets of paper falling from the table or being dropped or otherwise getting under the table was, as the jury might well have found, so likely to occur that something should have been done to protect a person seeking to recover such sheets of paper from being injured by the machinery. A very simple device would have accomplished *184the purpose. Certain unstitehed sheets having fallen from the table and through the open space, tlie infant plaintiff undértook. to recover them and in the act of doing so her hair became entangled in the revolving shaft. It was for the jury to sav whether the four-inch board or strip at the front being under the top of the table was a sufficient protection against the shaft; and it was also for the jury to say whether the defendant, exercising the care of a reasonably prudent man,, ought to ‘ have foreseen that in the performance of the work any of the employees might have to pick up sheets that-had fallen from and dropped.under the table. That was left as a question of fact, for the jury to determine;, for.the court, instructed the jury as follows :. *“*But I do charge that if a reasonably prudent man in tlie defendant’s situation, exercising ordinary care, would not have foreseen that a person might have come in contact, *as the plaintiff*did, -the defendant is not liable.”

The judgment and order should be affirmed.. .

Laughlin, J., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. .'