#### Hyman Benedict, Resp’t, *v.*Joseph Scheider, App’lt.

*(New York Common Pleas, General Term,*

*Filed June 1, 1891.)*

Master and servant—Negligence.

Plaintiff was injured while at work for defendant at a stamping machine. In an action for such injury he testified that he was a tinsmith of twenty-six years experience; that he had worked at this machine fora week; that while arranging tins on a die the hammer descended and injured his hand; that his foot was not on the treadle which worked the hammer; that he did not know what caused the hammer to descend, and that he could not say that the machine was in need of repair. Other testimony *202was given to the effect that the machine was in good order both before and after the accident; that the use of the machine had been explained to plaintiff, and that a former accident at said machine was caused by the negligence of the employe who was injured thereby. *Held,*that it was error to submit the question of defendant's negligence to the jury, and that the complaint should have been dismissed.

Appeal from, a judgment and order of the general term of the city court, affirming a judgment of that court in favor of plaintiff and an order denying the defendant's motion for a new trial, in an action to recover damages for injuries alleged to have been sustained by the plaintiff in the use of defective machinery while in the defendant’s employ.

*Adolph L.*Sanger, for resp’t; *Maurice Rapp,*for app’lt.

Bischoff, J.

The most important of all duties which devolve upon the master by reason of the contractual relation is so to conduct bis affairs to which the employment is incident that the servant is afforded all reasonable assurance of protection to life, health and limb while he is engaged in the performance of his duties; and to that end the master will be held to the exercise of due care and caution in the selection of a place reasonably safe for the servant to work in, *Kranz*v. *L.*I. *R. R. Co.,*123 N. Y., 1; 33 N. Y. State Rep., 46, of competent fellow servants, *Mann*v. *The President of the D. & H. Canal Co.,*91 N. Y., 495, and of implements and machinery reasonably safe and fit for the purposes for which they are intended to be used. *Painton*v. *Northern Cent. R. R. Co.,*83 N. Y., 7; *Murphy*v. *Boston & Albany R. R. Co.,*88 id., 146; *Burke*v. *Witherbee,*98 id., 562; *Hickey*v. *Taaffe,*105 id., 26 ; 6 N. Y. State Rep., 426.

It is likewise the duty of the master to instruct the servant " touching risks in the use of machinery which are not obvious and apparent to any person of ordinary intelligence, and to exercise reasonable care and diligence in maintaining the machinery in proper condition and repair. *Wright*v. *N. Y. C. R. R. Co.,*25 N. Y., 562. Having exercised such reasonable care and diligence in the selection of competent fellow servants and suitable machinery, and in maintaining the machinery in safe condition, the master is not thereafter to be regarded as insuring the servant against accidents arising from the negligence of fellow servants or defective machinery, *Murphy*v. *Boston & Albany R. R. Co.*88 N. Y., 146; Lawson’s Rights, Remedies & Practice, vol. 1, § 302, and cases cited, or against dangers which are obvious, *Hart*v. *Naumburg,*123 N. Y., 641; 33 N. Y. State Rep., 607, for these will be deemed to have been accepted by the servant as among the risks of his employment.

The master’s liability to his servant for injuries sustained by the latter rests in the personal negligence of the master, *Wright*v. *N. Y. C. R. R. Co., supra,*and to support a charge of negligence in must appear that he failed to exercise reasonable care and diligence in the performance of a duty owing by him to the servant or that he omitted entirely to perform that duty. *Warner*v. *Erie R. R. Co.,*39 N. Y., 468.

The mere happening of an accident, though shown to have *203been caused by the negligence of a fellow servant, or by a defect in the machinery furnished, does not raise a presumption of negligence on the part of the master, and in the absence of all evidence tending to establish the contrary the master will be presumed to have performed the duties incumbent upon him. *Cahill*v. Hilton, 106 N. Y., 512; 11 N. Y. State Rep., 26. The burden of proof is therefore upon him who asserts the master’s negligence as the foundation of his claim. Peering on Negligence, § 405; Shearman & Redfield on Negligence, § 12; Bailey on Onus Probandi, 216.

Now, considering the facts of the case before us, as they were developed on the trial, with reference to the duties of the defendant towards the plaintiff growing out of the contractual relation between them, and as above defined, do they in any degree tend to establish the defendant’s negligence ?

The evidence for the plaintiff, being the testimony of himself and a witness, Cohen, shows that' prior to his employment by defendant he was a tinsmith of twenty-six year’s experience; that he was received in defendant’s employ in August, 1883, and put to work on a machine for “ stamping ” tins, in the use of which he was first instructed by defendant’s foreman, Hamburger; that he had “ cut out ” several thousand tins and operated the machine for about a week, when the accident resulting in the injuries to his hand occurred, that the accident occurred in the unforeseen descent of a heavy weight, or “ hammer ” as it is called, while he was engaged in arranging tins upon the die immediately under the “hammer;” that attached to the “hammer” was a treadle to be operated by placing a foot thereon, and that by means of this treadle the “ hammer ” was caused to descend ; that he did not know what caused the “ hammer ” to descend when the accident occurred ; that he did not have his foot on the treadle, and could not say that the machine was in need of repair. Plaintiff further says that simultaneously with the happening of the accident to him he had observed that the belt attached to the “ hammer,” and by means of which it was caused to ascend, had become loosened, but how the loosening of the belt could have occasioned the accident we are left to conjecture. Cohen knew of no repairs required upon the machine after the accident. He also stated that about three months before another employe was injured while engaged in the operation of the same machine, but how, whether because of some defect or want of repair, the negligence of the person injured or of a fellow servant or otherwise, does not appear.

Upon this evidence defendant moved to dismiss the complaint, and we think the motion should have been granted. Waiving, however, the validity of defendant’s exception to the denial of the motion, and searching the evidence subsequently introduced, as we may do, *Painton*v. *Northern Cent R.*Co., 83 N. Y., 7, to supply the defect in plaintiff’s proof, we fail to find therein anything upon which negligence of the defendant can be predicated, directly or inferentially. The subsequent evidence is made up entirely of the testimony of defendant’s witnesses Cole, Alexander, Saling -and the defendant Cole described the machine as consisting of *204an anvil fastened to which was a die. Attached to the die were two upright slides in which the “ hammer ” ascended and descended.

The “ hammer ” was raised by means of the belt to which it was attached, and when raised to the proper height was securely held by “ catches ” projecting from the slides which could only be withdrawn by operating the treadle, thus causing the “ hammer ” to fall of its own weight. Cole further says that the machine was inspected and examined daily; that it was in good.order on the day of the accident, and was so immediately after the accident, when it was again operated without the need of repairs. He also explained that the accident to a former employe was the result of the injured person’s own carelessness. Alexander says that on the very day of and before the accident he explained the use of the machine to plaintiff, and that immediately after the accident he operated it and found it in good working order. He further stated that it was not in need of repair either before or after the accident. Saling’s and defendants testimony is mainly corroborative of Cole’s.

What is there in this evidence to charge defendant with negligence ? Does it show or tend to show that defendant did not select competent fellow servants or provide implements and machinery which were reasonably safe considering the exigencies and hazard of the business in which they were required ? Does it show or tend to show that the accident was caused by some hidden danger to which plaintiff’s attention had not been directed, or that it was due to some latent defect or impaired condition of which defendant had knowledge, or of which he could have had knowledge had he exercised reasonable care and diligence ? Does it show or tend to show that the defendant was remiss in his duty to cause frequent inspections of the machinery with a view of remedying discoverable defects and thus insure the safety of his servants? If not, then wherein did defendant’s alleged negligence consist? Candid consideration of the evidence leads irresistibly to the conclusion that the injuries sustained by the plaintiff were either the result of his own carelessness or Unavoidable accident, for neither of which defendant should be held answerable, and that the case is destitute of every element of negligence imputable to the defendant. It was error therefore to submit the question of defendant’s negligence to the jury and to refuse to dismiss the complaint.

The judgment and order appealed from must be reversed and a new trial ordered, with costs to abide the event.

Daly, Ch. J., and Pryor, J., concur.