181 N.Y. 215 | NY | 1905
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *217
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *218
As the shaft which caused plaintiff's injuries was elevated 14 or 15 feet above the floor of the defendant's factory, and could be reached only by the use of a ladder, the defendant cannot be charged with negligence under the Factory Act in failing to properly guard it. (Glens Falls P.C. Co. v. Travelers' Ins.Co.,
The plaintiff was a steamfitter of thirty years' experience, during which time he had been largely employed in machine *220
shops where revolving shafting was in use. His testimony, taken as a whole, tends to show some knowledge of the dangers attendant upon work in proximity to revolving shafts. It shows that he deemed it necessary to exercise care in avoiding contact with the shaft near which he was at work. The testimony of his witnesses discloses that the danger was a matter of common knowledge. Prior to the accident the plaintiff was a man of at least average mental and physical capacity, who had every opportunity to observe and comprehend the indications of danger in his line of work. In the exercise of ordinary care and prudence he could not have escaped the knowledge that there was danger in permitting his clothes to come in contact with a revolving shaft. The law imposes on the servant "the duty of self protection, and always assumes that this instinct, so deeply rooted in human nature, will guard him against all risks and dangers incident to the employment or arising in the course of the business of which he has knowledge or the means of knowledge. If he voluntarily enters into or continues in the service without objection or complaint, having knowledge or the means of knowing the dangers involved, he is deemed to assume the risk and to waive any claim for damages against the master in case of personal injury to him." (Crown
v. Orr,
Upon the motion for a new trial the learned trial judge conceded that if the shaft had been smooth, without the keyway, he would have felt constrained to hold that the plaintiff could not recover. We think he might have gone further and have held that the presence of the keyway did not materially affect the principle here involved. Upon the evidence in the case it must be assumed that the presence of the keyway enhanced the dangerous character of the shaft, and that the plaintiff had no knowledge of the existence of the keyway. But had the defendant specifically warned him of its existence, he would only have been told that there was danger in coming in contact with the shaft, and that, as we have seen, he must *221
be held to have understood. Where the danger is obvious and great, as in the case of a revolving shaft, it is not necessary to give warning of all the elements which serve to enhance the risk. (Ford v. Mount Tom Sulphite P. Co.,
For these reasons we think the judgment should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., GRAY and HAIGHT, JJ., concur; O'BRIEN, BARTLETT and VANN, JJ., dissent.
Judgment reversed, etc.