#### Charles Schmnoske, an Infant, by August Schmnoske, His Guardian ad Litem, Respondent, *v.*Asphalt Ready Roofing Company, Appellant.

Second Department,

December 30, 1908.

Master and servant —negligence—injury by sudden starting of machine — contributory negligence.

Where a servant employed at a machine left his place of work when the machinery was stopped and voluntarily went to another place to which he was not called by any service, taking a course which he knew to be dangerous, and was there injured by the sudden starting of the machinery, he cannot recover, not being about his master’s business at the time of the accident.

A recovery- cannot be based on the theory that the plaintiff was invited or licensed to go to the place in question.

Under the circumstances, the duty of the master was merely to avoid injuring the plaintiff after discovering that he was in a perilous position, and where there is nothing to show that the master or those representing him knew or should have known of the dangerous position of the plaintiff when the machinery was started, there can be no recovery.

A cause of action is not established by mere proof that cogs were unguarded, for the master is not obliged to guard against dangers which a reasonably prudent person would not have foreseen.

Woodward, J., dissented.

Appeal by the defendant, the Asphalt Ready Roofing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 14th day of November, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 14th day of November,-1907, denying the defendant’s motion for a new trial made upon the minutes.

*John F. Brennan,*for the appellant.

*William McCauley,*for the respondent.

Jenks, J.:

The servant complains that the master worked its machinery in an improper way ; that the machinery was dangerous and defective and unprotected, contrary to the law; that the machinery was worked in part by an infant under 14 years of age, as the defendant’s super-*501interment well knew, and that the injuries suffered were due to an unsafe place for work. The servant filed a notice under the Employers’ Liability Act. I think the judgment entered upon the verdict against the master cannot stand. The servant was in his 19tli year. He worked at a table in a factory wherein the defendant made asphalt roofing. His duty was to brush off sand from the edges of rolls of felt as they were passed along the table by machinery. The machinery about and on the table was worked by an engine .at some distance in the building. It embraced an endless chain with buckets which carried sand, and this chain ran quite near to the table. It also embraced certain rollers which were placed at the end of the table and which revolved by shafting whose cog connected with cog wheels on the rollers. The machinery on the table was stopped and started by the pulling of ropes. It was stopped at intervals during the day to put on or to remove rolls of felt, or if anything broke or required adjustment. The evidence is that whenever it was stopped, the workers left their places and went away from the machines to any place they wished, and that before it was started an employee would cry out, “ Go ahead,” so that the workers thus warned could resume their places before the machinery was working. The endless chain was not stopped with the rest of the machinery. The evidence of the plaintiff is that he left his place of work and went elsewhere; that while he was there talking to a fellow-servant, an employee under the age of 14 years, named Botello, without the usual warning, suddenly started the machinery, so that the plaintiff’s sleeve was caught in the revolving cogs of the rollers, and thus his arm was drawn into them. But the difficulty in the way of this recovery is, *first,*that the evidence is not sufficient to justify a conclusion that the servant was about the work of his master at the time of the accident, or could have supposed that he was about it, but on the contrary it indicates that when he left his work he went to a place to which he was not called by any service, and that he could have no reason to suppose that he went there in the course of service. The plaintiff’s testimony, not only when compared with that of the former trial, but even when scrutinized upon this trial is to a degree vague, unsatisfactory and contradictory; but I am convinced that he realized that it was dangerous to • take the course which he pursued to *502gain the ¡dace, to be in the place and to attempt to regain his place of work by the route which he took to reach that place. In *Gibson*v *Erie Railway Co.*(63 N. Y. 449) the servant, a conductor, “ of his own volition and without any necessity connected with his duties,” undertook to climb the cars when under wayr and was injured by being struck by the projection of the roof of the station, and it was held that the plaintiff could not recover. (Pp. 453, 454.) In *Ellsworth*v. *Metheney*(104 Fed. Rep. 119) the servant, at the noon hour and not in the course of his employment, went to vjsit a fellow-servant, and it was held that the passageway which he took to gain the society of the servant was not within the rule of a safe place to work. In *Belford*v. *Canada Shipping Co.*(35 Hun, 347) the plaintiff, who was a carpenter at work on the defendant’s ship, went with the engineer at night and hid his tools on the lower deck, and was afterwards injured while going to get them in the morning, and it was held that the defendant was not liable. This case is cited in support of the text in Shearman *&*Redheld on ¡Negligence (4th ed. § 190). In *Wright*v. *Rawson*(52 Iowa, 329) a miner in the employ of the defendant left his own workroom and entered another to visit the occupants, and when there was injured by a falling roof due to defective props thereof, and it was held that the defendant was not liable, for the reason that the servant was not engaged in his duty at the time of the accident. (See, too, *Jorgenson*v. *Johnson Chair Co.,*169 Ill. 429; *Swift & Co.*v. *McInerny,*90 Ill. App. 294. See, also, Labatt Mast. & Serv. § 626; S. & R. Neg. [4th ed.] § 190; *Flanagan*v. *Atlantic Asphalt Co.,*37 App. Div. 476.) *Second,*the evidence is not sufficient to justify the conclusion that there was any license or invitation to the plaintiff to go to the place in question, or to take the way thereto which he took and which he sought again in order to return to his proper place, for the plaintiff himself testifies that he had never seen any one take that way except the oilers of the machinery, and he virtually admits that he had been told by one or more of his fellow-workmen that he must not be in that place because it was dangerous. Thus the servant, without the cause of his employment and without any reason to believe that he was acting in said employment, left his work and went by a known dangerous way to a place which he had been warned was dangerous, and *503when in that place, or when seeking to regain the dangerous way, was injured. This case may be discriminated *from Muller*v. *Oakes Mfg. Co.*(113 App. Div. 689), cited by the learned counsel for the respondent, and like cases, *e. g., Parkinson Sugar Co.*v. *Riley*(31 Pac. Rep. 1090); *Ryan*v. *Fowler*(24 N. Y. 410), and *Muhlens*v. *Obermeyer & Liebmann*(83 App. Div. 88). For in such cases the servant, although not strictly at woi’k when injured, nevertheless was either under invitation or license, express or implied, to go in the place or to use the appliances in question. The duty of his master under the circumstances of this case is to avoid injury to the plaintiff after discovery by the master that the servant is in a perilous position. There is nothing upon this record which shows that the master or any, one who represented him knew or should have known that the plaintiff was in a dangerous position at the time the machinery was started. " In such a case the plaintiff does not establish a cause of action merely by proof that the cogs were unguarded, because the obligation is but to guard the machinery properly, and the dangers thus to be averted are only those that a reasonably prudent person could have foreseen. *(King*v. Reid, 124 App. Div. 121; *Kirwan*v. *American Lithographic Co.,*Id. 180 ; *Glens Falls P. C. Co.*v. *Travelers’ Ins. Co.,*162 N. Y. 399.)

The judgment must be reversed and a new trial granted, costs to abide the event.

Hooker, Gaynor and Rich, JJ., concurred; Woodward, J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.