#### Frank Perrotta, Respondent, *v.*Richmond Brick Company, Appellant.

Second Department,

January 10, 1908.

Negligence -- Employers’ Liability Act—, what risks assumed a. safe appliances ■— contributory ' negligence — involuntary movement ■ in time of danger.

*It seems,*that a servant employed solely to' run a stationary engine in a brick yard does not assume, under section 3 of the Employers’Liability Act, the \ risk of injury from uncovered cog wheels on a brick machine which he was directed to oil by the superintendent.-

A servant does not assume the risk of his employment if the master has failed tt> eliminate, the dangers thereof by providing reasonably safe appliances. The question of assumption of risk under the Employers’ Liability Act is One of fact.

A stationary engineer called upon. ,to oil the exposed- cog' wheels of a brick ■ machine is not required to exercise the.best judgment possible as to where he should stand, but is only called upon to use the degree of care which might be • expected from a person of reasonable prudence engaged in the same occupation.

A servant called' upon to oil cog wheels on a brick machine, which, through the negligence of the master were not furnished with a guard, is. not guilty of contributory .negligence’ as a matter.of law, because, when seeing a stone falling from the hopper above,, he made an involuntary movement, through which his arm was caught in the cogsj even though there, was a platform surrounding the hopper under which he could have stepped. ' . ■

Appeal, by the defendant, the Richmond Brick Company, from a judgment of the Supreme Court in favor' of the plaintiff, entered ' in the office of the clerk of the county of Richmond on the 30th day of October, 1.906, upon the verdict of a jury for $10,100, and also from an order entered in said clerk’s office on the 28th day. of November, -1906, denying .the defendant’s motion for a new trial made upon the minutes. •

. *George M.*Pinney, *Jr. \E. Sidney Perry*with him ón the briéf], for the appellant.

*Stephen C. Baldwin [Thomas C. McDonald*with him on the brief], for the respondent.

Rich, J.:

Plaintiff has obtained judgment hi an action brought to recover damages for personal injuries, He was an engineer employed by *627defendant to run a stationary engine at its brick yard on Staten Island, and prior to the' accident was engaged in the discharge of his duties. He testified that defendant’s superintendent, the person from whom he took his orders, told him to “come outside and oil the brick machine,” and called his attention to the condition of two cog wheels upon the machine which required oiling. He says an old tomato can was provided for oiling the machinery; that he had called the attention of the superintendent to the can and had requested that a proper oil can be provided, but none had been furnished at the time of the accident, although the superintendent had promised to do so. The hopper on top of the machine was. something over six feet above the ground ;■ clay was dumped into this and fed-, out into a mixing machine connected with these cog wheels, having a device to separate stone and rock from the clay, the stone being picked up by a clutch and thrown out. Plaintiff claimed that he had no knowledge of' this device; the two cog wheels, one above and one below, working together, propel the machine. Plaintiff alleged that while standing in front of these cogs, engaged in oiling them, a stone was thrown from the machine, and .in an attempt to avoid this stone his arm was caught in the cogs and seriously injured. Ho guard or covering of any kind was provided, and there is abundance of evidence in the case justifying the finding that the master had failed, in its duty to the plaintiff in not providing, a proper guard.

Defendant contends, however, that plaintiff knew the condition surrounding this machine — in fact, that lie had assisted in installing it a few weeks previous to the accident; that he had oiled it frequently and assumed the risk incident to the employment, and, lastly, he was guilty of contributory negligence. The Employers’ Liability Act (Laws of 1902, chap. 600, § 3) provides: “ A.n employee. by entéring upon or continuing in the service of the employer shall be presumed to have assented to the necessary risks of the occupation or employment and no others. The necessary risks of the occupation or employment shall in all cases arising after this act takes effect be considered as including those risks, and those-, only, inherent in the- nature of the business which' remain after the - employer has exercised, 'due. care in providing fo'r the safety of his employees, and has complied with the laws affecting *628or regulating such business or occupation for the greater safety of such employees.” Plaintiff assented to the necessary risks of the occupation and employment and no others. He testified that he was employed as an engineer and was taken from his work by the superintendent who had commanded him to«oil the brick machine. According to his version (and the jury have found that to - be the true one) it ivas no part of his duty under defendant’s employment to oil this machine, and if this is so lie did not assume the risk.' Farther than this, the Legislature intended that the master should provide a reasonably safe place and reasonably safe and-proper implements, and after this was done and the master had eliminated ■all dangers from the employment except those that are inherent in the nature of the business itself, if he chose to enter the employment after an opportunity of inspection he assumed the risks incident thereto. If it is true as claimed that the duty assigned to plaintiff and in which he was engaged at the time of the accident was *no*part of his employment, then it was not a risk of the occupation or employment and not assumed by him, but it is unnecessary to discuss this because if the defendant failed to eliminate the dangers of the employment by providing reasonably safe- appliances plaintiff' did not assume the risk. The question, of assumption of the risk was one of fact *(Neuweiler*v. *Central Brewing*Co., 119 App. Div. 101), and this question was properly submitted to the jury. The .question of plaintiff’s contributory negligence was likewise one of fact. It is true that plaintiff stood in front of these wheels and the accident might have been avoided had he stood in the rear and oiled the cogs fronhthat pioint; the work might not have been as artistically done as the wheels were revolving away from him, but it might have been done with greater safety. He was not required,, however, to exercise the best judgment possible; he was only called upon to exercise such a degree of care as might be expected of persons of reasonable prudence engaged in the same occupation.The wheels were in plain view; the work of oiling the machine Avas attended with some danger, and under ordinary circumstances a person might be guilty of negligence in permitting his hand to be caught in these cogs. Plaintiff expdains by saying that he saw a stone' coming from above; that in an attempt to avoid it he dodged and his arm was caught. ‘

*629Much time was .taken upon the argument in the discussion of the question of fact as to whether there was a platform flush with the top of the hopper extending over these wheels. In the view I take of the case, that is not a very material point. There was evidence-enough to sustain a. finding of negligence on the part of the defendant without considering whether the platform was there or not. Assuming that the platform was on the machine, on the question of plaintiff’s contributory negligence it could not be held as matter of law that plaintiff was guilty of negligence in changing his position as he saw the stone coming, although as a matter of fact .it would not have hit him had he remained quiet. The jury have decided that he was not negligent because of the involuntary movement of his arm, and I think their finding in this respect is supported by the evidence.

the charge of the learned trial justice was exceedingly fair; the verdict was not excessive and the judgment and order must be affirmed, with costs.

Present — Jenks, Hooker, G-atnor, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.