#### MARTIN v. WALKER & WILLIAMS MFG. CO.

(Supreme Court, Appellate Division, Third Department.

November 13, 1907.)

U. Master and Servant—Injuries to Servant—Evidence—Negligence of Master.

Where, in an action for a servant’s injuries, the only negligence charged was in defendant’s permitting a pool of oil to remain .on a machine platform, and in failing to inspect the machine so as to prevent oil from dropping on the platform, by reason of which plaintiff slipped on the oily surface and was injured by the rolls of the machine, and evidence that the rolls were without any guard, in violation of Labor Law, Laws *7091897, p. 461, c. 415, was admitted as a surrounding circumstance to show negligence in leaving oil on the floor where an employé might slip and be thrown into an unguarded machine, but not to show negligence in violating the labor law, it was error to permit evidence that similar machines in defendant’s factory and in other factories were covered or guarded, to show that it was practicable to do so.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 921.]

2. Same—Complaint—Amendment.

AVhere a servant slipped on a pool of oil on the platform of an unguarded machine, and was injured by the rolls thereof, but the complaint: charged negligence only in permitting the pool of oil to remain on the platform, etc., plaintiff could not rely on defendant’s violation of the Labor Law, Laws 1897, p. 461, c. 415, prohibiting the operation of such machines with uncovered rolls, without amending the complaint.

[Ed. Note.—For cases in point, see Cent Dig. vol. 34, Master and Servant, §§ 825-832, 872.]

8. Trial—Cubing Erbob.

Where evidence that the roils of a machine by which plaintiff was injured were uncovered, in violation of Labor Law, Laws 1897, p. 461, c, 415, was admitted merely to show negligence in leaving a pool of oil near such machine, which was the cause of plaintiff’s fall, error in admitting evidence that similar machines were covered in defendant’s factory and in other factories was not cured by an instruction that the jury might consider the fact that the rolls were not covered, but not that it was a violation of the labor law.

Appeal from Trial Term, Albany County.

Action by William Martin, an infant, by Hermine Martine, his guardian ad litem, against the Walker & Williams Manufacturing Company. From a judgment on a verdict in favor of plaintiff for $2,000, and from an order denying defendant’s motion for a new trial on the minutes, it appeals. Reversed, and new trial granted.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

Countryman, Nellis & Du Bois (Andrew J. Nellis, of counsel), for appellant.

John Scanlon, for respondent.

JOHN M. KELLOGG, J.

In his complaint the plaintiff alleges the negligence of the defendant in permitting a pool of oil to remain upon the platform upon which its Garnett machine stood, and its negligent failure to inspect said machine so as to prevent the oil from dropping upon the platform, by reason of which the plaintiff slipped upon the oily surface of the platform, fell into the machine, and was severely injured by its rollers.

Upon the trial, under the defendant’s objection that no violation of the Labor Law, Laws 1897, p. 461, c. 415, and no negligence in leaving the rollers unguarded was alleged, plaintiff was permitted to prove that the Garnett machine into which he fell did not have a cover or guard over the rollers. This evidence was permitted upon the ground that it was proper to show the situation surrounding the accident, whether a violation of the labor law was alleged or not. Later, over a similar objection and exception, plaintiff was permitted to show that *710other machines of the same kind in this factory, and in other factories, had the rollers covered or guarded, as tending to show that it was practicable to cover or guard these rollers. It was improper to show that other machines in this and in other factories were guarded, for it was entirely immaterial under the pleadings whether it was practicable to guard this machine or not. Leaving a pool of oil near an unguarded machine is just as negligent, whether it is practicable to guard the machine or not, for the negligence is not in leaving the machine unguarded, but in leaving the oil upon the floor where an employé is liable to slip and be thrown into the unguarded machine. This evidence as to the other machines brought into the case an issue 0 not foreshadowed by the pleadings, and it is impossible to say whether the recovery was based upon negligence in allowing oil to drop upon the floor, or in leaving the rollers of the machine uncovered. The question was squarely raised upon the trial, and, if the plaintiff desired to rely upon a violation of the labor law, or negligence in leaving the rollers unguarded, he should have amended his complaint. At the close of the case the court informed the jury that they might take into consideration the fact that there was no cover upon the rollers, but not that it was a violation of the labor law. This did not cure the error. Irrespective of the labor law, the jury may have determined that it was negligence to put the plaintiff at work around an unguarded machine. Plaintiff suffered his serious injury by falling against the rollers while they were in motion, and the evidence was clearly prejudicial.

The judgment and order should therefore be reversed and a new trial granted, with costs to the appellant to abide the event. All concur.