#### Charles J. King, Respondent, *v.*William G. Reid, Appellant.

First Department,

February 7, 1908.

Negligence — Labor Law-guarding machinery — purpose of statute — evidence — effect of failure of factory inspectors to require guard — guarding of similar wheels — no previous accidents'.

Under section 81 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192), requiring the guarding of machinery, the dangers to be guarded against are only those that a reasonably prudent person, would have anticipated, and the master is not liable for failure to guard a flywheel the inner rim of which was eleven or twdlve inches from the floor, where injury to an employee was caused by his falling from a. platform located about twenty-eight and one-half inches from the fly wheel and catching his foot between the spokes of the wheel.

In determining-whether or not the failure to guard a fly wheel is negligence, the fact that factory inspectors had inspected the factory annually pursuant to a statute authorizing them to prohibit the use of machinery not properly. guarded Without suggesting that the wheel was not properly guarded may be taken into consideration. .

Negligence of an employer in failing to guard a fly wheel, the inner rim of which was eleven or twelve inches from the floor, is not shown by evidence that in some factories similar wheels had been guarded, where it appears that such wheels were within two or three inches of the floor and the guard was intended to protect persons walking along the floor.

While the fact that no previous accident had. occurred during several years use of an unguarded fly wheel is not controlling in a case where a condition obviously dangerous is presented, it is entitled to great weight in determining whether or not a wheel was properly guarded, where the condition was not obviously dangerous.

Houghton, J., dissented.

Appeal by the defendant, William G. Reid, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New Tork on the 10th day of June, 1907, upon the verdict of a jury for $1,750, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

*James Kearney,*for the appellant.

*Herbert O. Smyth,*for the respondent.

*122Ingraham, J.:

The plaintiff, a man fifty-five years of age, had been a “press feeder ”, for over forty years and had been employed by the defendant and was familiar with his establishment. On. the 6th of January, 1904, he was given work by the defendant, commencing about eight o’clock in the morning. He was put to work, upon a “ Campbell press,” which required him to stand upon a' platform twenty-one inches, in length and fourteen inches in width. Across an aisleway from this press, which was about twenty-eight inches wide, there was a press known as a “Haber press,” upon which there was á fly wheel adjoining the aisle, so that the distance between the platform of the Campbell press and the projecting fly wheel was about twenty-eight and a half inches. Both presses were in operation. This fly wheel was thirty-two and a half inches in diameter and was not guarded. The platform upon which the plaintiff was working was connected with the floor by tw.o iron steps, the platform being. about thirty-two inches from the floor. After the plaintiff had been working about an hour and a half, he asked a fellow-employee named Waldron to take liis place. Waldron came up on the platform, took the plaintiff’s place alongside of •the machine, and the plaintiff then started to go down to the floor. He testified that he squeezed past Waldron, put one foot on the second-step when he slipped. He grabbed Waldron to sav.e himsélf, hut in some way turned around and fell over upon the floor and his leg went in between the spokes of this fly wheel, and for the injuries thus sustained he has recovered a judgment. A motion for a new trial upon the judge’s minutes was made and denied, and the defendant appeals from the judgment and order denying the motion for a new trial.

The fly wheel upon the Huber press is used in turning the machine backwards or forwards by hand when necessary after the power has been shut off, and there was evidence to show that it was impracticable to hav.e a guard about it, as the operator had to use his foot to turn the wheel, which a guard would prevent. It'is quite evident that there was no danger of the workmen being injured by this wheel in the condition that, it was in unless they fell into it. *It*also".'appeared that this machine liad been in operation for about twenty years in the same condition as'at the time of the *123accident and that no accident had ever been caused by it. An accident of this kind had never been known before and a machine similar to that of the defendant had been in general use in printing establishments in New' York for many years and it was not customary to have' it guarded or protected where' the bottom of the fly wheel was more than two or three inches from the floor. There was some evidence by the plaintiff that in a few establishments a guard had been put about a fly wheel attached to machines of this character, hut these protections were only when the wheel was within two or three inches of the floor, and there is no evidence that the guards were used when the wheél was sufficiently high from the floor so that there was no liability of a person’s foot being-caught while walking along the aisle. It also appeared that the State Factory Inspector had visited the defendant’s premises yearly, looked over the machinery* and no suggestion had ever been made that a cover or protection of any kind was necessary. The platform was made of wood and the steps were iron. There was no sign of oil or anything else on the platform or steps, hut the iron steps were somewhat smooth from use. From the position of this platform it would seem almost impossible for a person to fall from the steps and get his foot into the fly wheel and the plaintiff must have fallen from the platform.

The plaintiff claims that defendant was in two respects negligent. The first is a violation of section 81 of the Labor Law (Laws of 1891, chap. 415, as amd. by Laws of 1899, chap. 192). That section provides that “ All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery, of every description, shall be properly guarded.” The purpose of this enactment as stated by the Court of Appeals in *Glens Falls P. C. Co. v. Travelers’ Ins. Co.*(162 N. Y. 399) is to give force to the existing rule that masters should afford a reasonably safe place in which their servants are called upon to work, but said : “ "We think, however, that the Legislature could not have intended that every piece of machinery in a large building should be covered or guarded. This would lie impracticable. What ■evidently was intended was that those parts of the machiriéry which were dangerous to the servants whose duty required them to work in its immediate vicinity should be properly guarded, so as to minimize, so far as practicable, the dangers *124attending their labors. Human foresight is limited, and masters are not called upon to guard against every possible danger. They are required only to guard against such dangers as woul'd occur to a reasonably prudent man as liable to happen.”

Can it be said that a reasonably prudent person could have anticipated that any of the employees engaged in operating this machinery would put his foot inside the fly wheel, the inner rim of which was eleven or twelve inches from the floor ? The obligation imposed upon the defendant was to properly guard the machine. It had been in use many years before this statute was passed. Ho accident had ever occurred. There Was no suggestion that a guard was necessary. Hothing had ever occurred that would indicate that the absence of a guard would subject any of the defendant’s employees to such an accident. The machine was to be used, not by inexperienced persons, but by experienced pressmen who understood the machines. The situation was apparent and, so far as appears, was perfectly safe for any one who did not fall off the platform into the machine. It seems to me’ that this occurrence was not one that could have been anticipated; nor could a reasonably prudent person have anticipated that a person would fall into this fly wheel from the platform, or that it was at all necessary to guard the wheel. It was not an occurrence that was at all likely to happen, so that in the ordinary course of business-it was necessary to guard against it. All machinery of this kind is liable to cause-injury when unexpected and not to be anticipated events occur; but I think a machine is properly guarded when those employed are protected, when using the ordinary methods of operating it.. The platform upon which the plaintiff was at work was obviously intended to be iised by one man while engaged in feeding' the machine. Ho employer could have anticipated that two persons should attempt to be upon the platform at the same time and as a result one would fall off iiito an adjoining machine.. An' examination of section 81 of the Labor Law fairly establishes that there was no intention to make an employer of labor an insurer against all injury caused by machinery or to require that lie should anticipate or provide against an extraordinary or not to be anticipated occurrence. In considering whether or not the failure to guard the fly wheel was negligence, the fact that the statute makes provision *125for an inspection of factories by inspectors appointed by the State and that “If a machine or any part thereof is in a dangerous condition or is not properly guarded, the use thereof may be prohibited by the factory inspector, and a notice to that effect shall be attached thereto.. Such notice shall not be removed until the machine is made safe and the required safeguards are provided, and in the meantime such unsafe or dangerous machinery shall not be used.” The defendant’s factory was inspected yearly by-inspectors and no suggestion was ever made that this 'fly wheel was not properly guarded, nor was the defendant required to protect it. Factory inspectors, who are in the nature of experts employed by the State to see that the law is complied with, did. not consider that this fly wheel Was unsafe or improperly guarded. The evidence in relation to other machines to which guards had been attached in a few factories shows them to have been materially different from the machine in question, and the guard then used was evidently intended to protect a person walking along the floor, a guard which was unnecessary in relation to this machine becau'se of the distance between the fly wheel and the floor.

While it is conceded that the fact that no previous accident had ever happened is not controlling, where a condition obviously dangerous is presented (See *Motzing*v. *Excelsior Brewing Co.,*107 App. Div. 275; affd., 186 N. Y. 577) it is nevertheless entitled to great weight in determining whether or not the machinery is properly guarded where the condition is not obviously dangerous. “ It is a mistake for one to take his stand after an accident and to impute responsibility from a view thus obtained. It is nearly always easy after an accident has happened to see how it could have been avoided. But taking our stand before this accident, the very first of the kind, so far as we know, that ever occurred, we ■ can upon the facts of this case see no ground for imputing against the defendants the want of that ordinary care, diligence and foresight which they, as employers, owed to the men in their service.” *(Burke*v. *Witherbee,*98 N. Y. 562.)

There is also a claim that there was some evidence of negligence in the slippery condition of the steps leading to the platform, but there is nn evidence that the steps had any relation to the accident or that a mere worn iron step is an unsafe appliance.

*126I think the judgment and order should be reversed as against the evidence, and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., McLaughlin and Laughlin, JJ., concurred; Houghton, J., dissented.

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