#### Clarence E. Evans, an Infant, by Edward Evans, His Guardian ad Litem, Respondent, *v.*Eastman Kodak Company, Appellant.

Fourth Department,

January 6, 1909.

Master and servant — negligence — injury by shrinking machine —« assumption of obvious risks — contributory negligence.

Where an employee of experience, engaged in operating a machine called a “shrinker,” designed to wind paper upon wooden cores which were placed in the machine for that purpose, on discovering that the core then in use was split and out of line so that it did not operate properly, continued, nevertheless, to use it instead of inserting another core provided by the master, he assumed the risk of injury thereby.

Where an action to recover for injuries so caused is at common law, the fact that the master’s foreman, on his attention being called to the broken core, told the plaintiff to continue to use it, does not charge the master with liability, as the superintendent was a fellow-servant and the substitution of a new core a mere detail of the work.

Even assuming that the foreman represented the master, the plaintiff, by continuing to use the core knowing its condition, assumed the risk.

*Held*further, that the plaintiff had not shown freedom from contributory negligence.

Kbüse and Robson, JJ., dissented.

*769Appeal by the defendant, the Eastman Kodak Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 23d day of June, 1908, upon the verdict of a jury for $7,974, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

*George A. Carnahan,*for the appellant.

*George D. Reed,*for the respondent.

Spring, J.:

The plaintiff, a servant, has sued his master in negligence at common law to recover for personal injuries sustained January 10, 1906, while in its employ.

The defendant is a corporation engaged in the manufacture of photographic supplies in the city of Rochester. The plaintiff, a young man nineteen years of age at the time of the accident, had been in the employ of the defendant for about two years. He had worked in various departments of defendant’s manufactory, and among others in the black paper coating department and upon a machine called the shrinker, at which he was working when the injuries were inflicted.

The machine comprised two steel cylinders, steam heated, each three feet in diameter around which the paper ran in the drying and shrinking process. The plaintiff, a bright capable young man familiar with the operation and function of the machinery, after describing the cylinders from a diagram which he had prepared, proceeded as follows: “ There is a wooden core upon the shaft and this core is taken off by unloosening a dog at the end, and a roll of paper is then put on. The dog is wedged into this wooden core to hold it stationary. This roll was about a foot and a half in diameter, and about twenty-eight or thirty inches long. The shaft is continuous and goes through the spool and has a bearing on each end. On the easterly end of the shaft is a pulley called a tension. The tension operates as follows: There is a pulley fastened to the shaft, stationary, and around that pulley is fastened a belt reinforced with iron. This belt slips around the pulley as the roll turns, and is held *770in place by a stick which reaches from the floor up to a part of this band, which comes out so as to hold it. * * * This is what is called a strap brake. It is a leather strap going around a pulley, and then there is a thumb screw that screws the two pieces together and as it is screwed down tighter it makes the shaft of the cylinder go slower, and so the paper goes slower. .The dogs were placed at the end of the roll so as to fit into it and the dog at one end was stationary. On the other end of the shaft the dog was slipped on and driven into both ends of the spool to make it tight and there was a set screw so it would not slip out. * * * The wooden core was about three and one-half feet long by five inches in diameter, made of wood, and through it was a square hole that these dogs would fit into. With all the paper off from the core there appeared a longitudinal slot just the width of a buzz saw passing through the center of the core and about a foot and a half long on one side and smaller on the other side. To wind the paper on the core the end of the paper would be put through this slot so that the paper would be held from slipping arid would wind upon the core tight. The rollers were about three-quarters of an inch directly over the heated cylinders, maybe less.”

On the day of the accident the plaintiff and a coemployee named Riley were called from one of the other rooms to the black paper coating department, in which one Culhane was the foreman. The roll was ready and they put on the tension and commenced threading the machine with the damp paper which came too fast for them and did not wind tight around the cylinders. The wooden core was sound when the plaintiff commenced work, but after a short time he observed it was split, due to the tight tension. The core wabbled and became out of alignment. The plaintiff testified that he called the attention of Culhane to the condition of the core. The two talked the matter over and agreed it was caused by too tight tension, and Culhane loosened it. The plaintiff .said he wished a new core and Culhane told him to use it as it was and it was all right. Culhane then went away and did not come near the machine again until after the accident. The plaintiff, while endeavoring to smooth out the creases, caught his hand between one of the rollers . and the heated drum and it was crushed and badly burned. The wooden spools or cores were about three and one-half feet long and *771five inches in diameter. There were plenty of them provided by the defendant in the room where the plaintiff was working, and it was not a difficult operation to change the split core for a sound one.

We have, therefore, the familiar case of a competent foreman, a skilled employee, a safe place with suitable appliances. The foreman and the employee, knowing the effect of a core split and out of center, continued its use. It may well be held that Culhane was a coservant of the plaintiff; that he exercised his judgment in deciding to continue the use of the defective core, and the substitution of one core for another was a mere detail of the work. (*Vogel*v. *American Bridge Co.,*180 N. Y. 373; *Kimmer*v. *Weber,*151 id. 417, 422; *Neagle*v. *Syracuse, B. & N. Y. R. R. Co.,*185 id. 270, 274; *Russell*v. *Lehigh Valley R. R. Co.,*188 id. 344; *Flet*v. *Hunter Arms Co.,*74 App. Div. 572; *Madigan*v. *O. S. Nav. Co.,*178 N. Y. 242; *Mahoney*v. *Cayuga Lake Cement Co.,*126 App. Div. 164.)

Assuming, however, that Culhane represented the master we think the judgment cannot stand.

The plaintiff, although a young man, was familiar with the operation of the machinery in that department. He knew how to run and manipulate the shrinking machine. He knew that the core was split and that the wabbling was due to that condition. When he first observed the core it was sound. It split under his operation, and the effect was immediately apparent' to him. After Culhane left him he continued to run the machine for fifteen minutes, although the rolls of paper were not taken care of and piled rapidly upon him by reason of the defective core, as he well understood. The whole situation was obvious and plain to him. He assumed the risk of this defective appliance when he continued to prosecute the work with full knowledge of its condition and of its failure to perform its usual functions. *(Knisley*v. *Pratt,*148 N. Y. 372; *Rice*v. *Eureka Paper Co.,*174 id. 385; *Dillon*v. *Nat. Coal Tar Co.,*181 id. 215.)

The court charged the jury that *“*an employee is not entitled to rely upon an assurance of safety given to him by a foreman or other employee, where the danger of the defect is open and obvious.” Also: *“*If the risk of operating that machine with the split core was open and obvious, and the plaintiff assumed the risk, it makes *772no difference whether Gulhane directed the use of that split core or not.” The law of the case was thus established by the court, and even though Gulhane assured the plaintiff that the split core was safe to use, the latter knowing its condition, which was manifest, continued its operation at his peril.

Again, the plaintiff was aware of the danger of getting his hand between the superheated drum and the roller. He gives no satisfactory explanation for putting his hand in that place of danger. He may have been excited or flustrated because the machine did not operate successfully. He still was called upon to exercise care, and the record does not show that he did so. I think he was guilty of carelessness which contributed to the unfortunate accident.

The defendant’s counsel asked the court to charge “ that if the jury find that this machine or any part thereof was defective or out of order, and the plaintiff knew of the- defect or the particular in which it was out of order, and appreciated the danger of threading the machine in that condition, as matter of law he assumed the risk and the verdict must be for the defendant,” which the court declined to do, and an exception was taken. The jury might have found all the facts’ embodied in this request. If so, the plaintiff is not entitled to recover. For these reasons the judgment should be reversed.

All concurred, except ICruse and Robson, JJ., who dissented.

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