#### Matilda Civetti, an Infant, by Alvin Ohlsen, Her Guardian ad Litem, Respondent, *v.*The American Hatters and Furriers’ Corporation, Appellant.

First Department,

February 7, 1908.

Master and. servant — injuries from revolving shaft — evidence—negligence— guarding machine — custom — accident in another State—, expert opinion as to appliance—motion for judgment on special findings.

The evidence in an action to recover for injuries to a servant, fifteen years of age, resulting from her- hair catching in a revolving shaft, examined and *held,*insufficient to show the defendant guilty of negligence;

*346It is,error to permit a witness, having no knowledge concerning factories in the State where the accident occurred, to testify to the custom: with respect to guarding shafts in *the*city of *New*York,- where *the*State statutes require the guarding of certain dangerous machinery, while the law of the State where the accident occurred requires the guaiding of machinery only when required hy the Factory Inspector.

It is reversible error to permit a witness to answer'"an hypothetical question, embodying the circumstances under which the plaintiff was working, as to whether the shaft in which her hair was caught was a dangerous appliance.

The entry of a formal order denying a motion for judgment on the special findings of the jury is improper, as the special verdict becomes a part of the record, and the refusal of the court to direct a judgment thereon is reviewable in the same manner as are other .exceptions taken on the trial.

Appeal by tlie defendant, The American'Hatters and • Furriers’' .Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of .the clerk of the county of -New York on the 21st day of June, 1907, upon the verdict of a jury for $5,000, and also from two orders entered in said clerk’s office on. the 24th day of June, 1907, respectively denying the defendant’s respective motions for judgment upon the special findings of the jury notwithstanding the general verdict and for a new trial made upon the minutes.

*Selden Bacon,*for the appellant.

*James B. Darcy [George M.*the respondent. *Wright*with him on the brief], for

Laughlin, J.':

This action is .brought to recover damages for personal injuries sustained by the plaintiff on the 6th day of April, 1906, alleged to have been caused by the negligence of the defendant. The plaintiff was fourteen or fifteen years of age, and had been in the employ of the defendant in the same capacity for a period of from one week to a month or more. The defendant is a domestic corporation, but it ivas operating a plant at Danbury, Conn., in which it was engaged, among other things, in tanning rabbits’skins. The duties of tlie plaintiff consisted in placing.the skins on a wooden pole about one inch in diameter and six feet in length, and then elevating the pole to a position under " the ceiling, with each end resting Over a-slat nailed on" tlie underside of rafters or joists and at right angle's *347thereto. Her work was done at a movable table,' forty-four inches in length, the top of which was about three feet above the floor. In front of the table and attached thereto was a step fourteen inches above the floor, upon which she was required to stand. From each end of the table at the .rear a strip of wood projected about one foot above, with the upper end notched. The pole upon which the skins were to be placed rested in these notches. She was required to stand on the step of the table and take the skins from the table and place them across the pole. The rafters or joists extended across the room in which she was working and these strips fastened to the underside thereof extended from the front to the rear of the room, about five feet eight inches apart, making two parallel and adjoining spaces on which to hang the poles. She worked from the rear to the front of the room moving the table a short distance from time to time as her convenience required ; and when standing-on the step to the table at her work she was facing the rear of the room. On her left there was a drying machine or “baker” fully inclosed like a rough box, extending-two feet ten inches above the floor, and extending completely under one of the spaces in which the poles with skins were required to be hung, and about one foot under the second space under which the table was. The plaintiff would step from the step on which she was standing at the table over onto the drying machine in putting poles in place in the space above it. The proper position for the table, to make it most convenient in doing the work, was with one end against or close, to the drying machine, for in that way she could step over onto the'drying machine and could, without changing her position, put the poles in place directly above the table. Five or six skins, according to their size, would be placed on the pole, which, with the skins, would weigh about six pounds, and then the plaintiff would take hold of the pole with both hands about eighteen inches apart and equidistant from the ends, and lift it into place upon the slats. On account of acid on the skins she'was obliged to handle them with gloves; and there is some evidence indicating that in lifting the pole she would keep her head away lest'' the acid might drop on her face. From the floor to the top of the strips on which the poles rested was about seven feét one and three-quarter inches. The length of the room was about twenty-five feet. From the rear a *348shaft elevén-sixteentlis óf an inch in diameter projected' toward the front, thirteen feet. Tt 'was six feet ten and seven-eighths itiches above the floor, being just under the joists or rafters and running parallel with.and one foot distant from the slat to the right of the plaintiff when standing at the table. There were pulleys attached, to this shaft and when the machinery was in motion it revolved with considerable rapidity, the precise number of revolutions per minute not being shown.. The plaintiff had charge of' moving the table at which she worked from the rear toward the front as already stated, as her convenience required. When first directed to work at the table, she was instructed bv defendant’s foreman to stand on the step and put the poles in place on the slats from that position, which she appears to have been able to do conveniently, and usually did. . Ho specific instructions were given to her with respect either to where to place the table or to keeping it from under the shaft. At the time of the accident instead of placing the table oh the floor between the lines of the slats, plaintiff unnecessarily placed it unde*r*the revolving shaft, and instead of standing on the step to put the pole with the skins on in place above, climbed upon ahd stood upon the table while putting it in place. After slie had put the pole in place, and, according to her testimony, while her hands were still touching the skins, she felt her hair pulling and her hair was wound around the shaft and torn off, taking with it a large part of the scalp. As already observed, there was no necessity for her to come:within dangerous proximity to the shaft in doing her work, and if she had placed the table where she could have done her work With greatest ease and convenience and expedition, she would not have been sufficiently near the - shaft to have met with the injury. Her evidence is inconsistent and conflicting on some very material points. She testifies that she was told to stand on the step while putting the poles ill place and says that she never stood on the table While the'defendant’s foreman or superintendent was present; and then she contradicts this .and says that lie often saw her standing on the table. We have not overlooked the claim that her testimony must be Weighed in the light of the injuries she received. She denied that'she was told to keep-her hair braided, but on conflicting evidence the -jury found' specially that she .had been so instructed by the foreman. Likewise, on *349conflicting evidence, the jury found that her hair was properly braided at the time of the accident which, we think, is quite improbable, unless after placing the pole in position and having nothing further to do on the table excepting to get down onto the step she unnecessarily and carelessly changed her position and brought her head in contact with the shaft. The jury also found specially that she was instructed by the foreman to stand on the step of the table while hanging the poles ; and they also found that the accident would not have happened if she had not climbed up on top of the table. Evidence was given on the part of the defendant tending to show that she was warned of the danger, but this she denied. There was no law in the State of Connecticut requiring machinery to be guarded excepting as directed by a factory inspector,* and it appears that this plant had been in operation for a long time in the same condition, and that no directions had been given to guard the shaft, although the machinery had been frequently inspected. The court, under objection and exception duly taken by the defendant, permitted a witness, who had n,o knowledge concerning factories in the State of Connecticut, to testify to the custom with respect to guarding shafts in the city of Hew York where such matters are regulated by a statute of the State.† The court also permitted the same witness to answer a hypothetical question, embodying the circumstances under which the plaintiff was working, as to whether the shaft was a. dangerous appliance, and the witness answered in the affirmative. This evidence was likewise received over the defendant’s objection that it was incompetent, irrelevant and immaterial, and under its exception, The evidence thus given was clearly incompetent and most prejudicial, and would alone require a reversal. We deem it our duty, however, to express the opinion that the verdict is against the weight of the evidence in so far as the jury found the defendant guilty of negligence and is doubtless. the result of sympathy for the unfortunate girl, owing to the nature of the injuries sustained. Hnder the law of Connecticut the defendant had the .right to employ the plaintiff in this work. It was the duty of the defendant to give *350her proper Instructions and to warn her of any danger that would , be apprehended by a reasonably prudent employer. If she was specifically instructed.to stand upon the step in hanging the skins and could conveniently hang them while standing in that position, and she was warned of the danger of having' ’her hair loose on account of the shaft of other machinery about the place, it was her duty to observe those instructions, and in the absence of knowledge that' she was doing the work differently the defendant would have a right' to assume that she wás conforming to the instructions given. In view of her age, however, if she did not receive proper instructions and warning, or if the defendant or its-foreman knew that she was violating the instructions and standing upon-the table, in dangerous proximity to the shaft or placing it under the shaft, the liability of the defendant might present a question for the jury. The .special findings of the jury, to which, reference has been made? In favor of the defendant did not entitle it to the direction of a general verdict. '

It appears that a formal order was entered denying defendant’s motion-for judgment on the special findings of the jury which were reported with the general verdict. The entry of that order was unwarranted and the appeal therefrom should be- dismissed, as .the ' special verdict becomes part of the record (Code Civ. Proc.' § 1187), and an exception to the refusal of the court' to direct a general verdict or judgment thereon is reviewable in the same manner as are other exceptions taken on the. trial.

It follows that the appeal from the order denying defendant’s motion for judgment on the special findings should.be dismissed, and the judgment and order denying the motion for a new trial should be reversed and a new trial granted, with costs to appellant to abide the event. ,

Patterson, P. J., McLaughlin, Clarke . and Scott, JJ., concurred. . , .

Appeal from order denying motion for judgment dismissed, judgment and order reversed, new trial ordered, costs to appellant to abide event. • - ■ >

*

 See Gen. Stat. Conn. (Rev. 1902) § 4514 *et*seq., as amd.— [Rep.

†

 See Labor Law (Laws of 1897, chap. 415), § 81, as amd. by Laws of 1904 chap. 291. Since amd. by Laws of 1906, chap. 366.— [Rep.