77 N.Y.S. 813 | N.Y. App. Div. | 1902
We think the decision of the trial court must be sustained upon at least two grounds, and, in reaching this conclusion, we assume
In these circumstances we think it must be held that the plaintiff assumed whatever risk attended the operation of the machine with the belting in the defective condition she described; for, as we have seen, with full knowledge of such defect and of the defendant’s failure to remedy the same, she continued to operate the machine regardless of the danger which threatened her. And, if this be so, there is nothing in the Labor Law (Laws of 1897, chap. 415, § 81, as amd. by Laws of 1899, chap. 192) which relieves the plaintiff from the consequences of her own voluntary act, for, as has been well said in a recent case, “ there is no reason in principle or authority why an employee should not be'allowed to assume the obvious risks of the business as well under the Factory Act
But, if there were any doubt as to the correctness of this proposition, we think it entirely clear that the plaintiff’s injury was attributable, in part at least, to her own negligence.
As has been stated, she had been engaged in cleaning the machine at the time of the accident, to accomplish which she had taken it apart, and then, for some reason which does not clearly appear, she attempted to readjust the various parts, although Ludwig, her principal witness, testified that this was no part of her duty, but that it was his business to put the machines together after they had been cleaned. This witness also testified that, for the purpose .of wash
She testified, it is true, that she had never known the belt to thus shift when the machine was apart, but this circumstance does not in our opinion relieve her from the charge of contributory negligence, for although some parts of the machine had not been replaced, the screw was in its proper position, and she would have us understand that it was because of the force she exerted in her attempt to push it out of position that it was set in motion.
We do not quite perceive the reason for this contention, but in any view that may be taken of the case, it is difficult to resist the conclusion, that the plaintiff’s injuries were due quite as much to her own negligence as to that of the defendant, and such being the case, it follows, of course, that she cannot recover. (Schulz v. Rohe, 149 N. Y. 132; Hartwig v. Bay State S. & L. Co., 118 id. 664.)
McLennan, Spring, Williams and Hiscook, JJ., concurred.
Judgment affirmed, with costs.
Laws of 1886, chap. 409, § 12, as amd. by Laws of 1890, chap. 398.— [Rep.