Hardin, P. J.:
From the evidence it is quite clear that Holbrook owned the premises where the wall was being constructed, although the same had been for some considerable period of time in the possession of the defendant. Holbrook entered into an agreement with the plaintiff and [510]*510his partner, Petrie, to perform services in the erection of a wall at the price of four dollars and fifty cents per thousand brick. They commenced the erection • of the wall, and after it had progressed so as to require a platfor'm to work upon they built a platform or scaffold on the. south side of the wall next adjacent to the property of the defendant. It appears that when they commenced the'erection of the wall Holbrook remonstrated with them very strongly against building a scaffold on the south side of the wall, insisting that it would interfere with the. business of the defendant, and expressed his strong desire to have them build a scaffold on the north side of the wall. However, they persisted in using the south side for the erection of the scaffold. After they had erected the wall so far as was convenient by means of the first scaffold, they erected a second one, which came within some two and a half feet of the shaft, and they placed runways from the scaffold' in a southerly direction into the premises of the defendant. The business of the defendant was in progress, and it was in daily use of the machinery in' its building, using the shaft for the purpose of propelling the same during the whole period of time that the plaintiff and his partner were engaged in the erection of the wall. Prior to the commencement of the erection of the brick wall the plaintiff and his partner had erected a foundation wall of stone under a contract to do the same for $284. The contract for the erection of the brick wall was made with Holbrook.- It was not in writing. At the time they commenced the erection of the wall the premises north of it were vacant and there was an entrance to the property from Bridge street. It appears that when Holbrook remonstrated with them for using scaffolds bn the south side instead of on the north side, they replied:. “ It would be more trouble to scaffold it, to put up a scaffold there ; they could build on the scaffold with very little scaffolding; they insisting upon building on that side.” '
Petrie testifies : “ It would have been possible to have had one mason work on the east side of the shaft and another work from the west side to him and not have anybody pass under there. We didn’t lay this wall from the north . side because it would have cost about $10 more for building the scaffolding, and it was the handiest to lay it on the side we laid it on.”
[511]*511Evidence was given tending to show that neither Horton, nor Petrie nor any one in their behalf ever requested the defendant to stop the shaft.
Seeber, an architect, who prepared the diagrams that were used in evidence, testified : “ The distance from the bottom of the post to the shaft is 12 feet 6 inches as I remember it. The shaft is two and one-half inches in diameter. The shaft is about 8 inches from the post. The outer pulley on this shaft is 18 inches in diameter.”
The witness King testifies : “ I saw Mi’. Horton at a time when he was passing under this shaft. I saw him do so the same morning that he got hurt. I heard Mr. Smith speak to him in reference to doing so. Mr. Smith says, be careful going under there, you will get caught on the shaft.” This witness adds: “ You can see that set screw standing on the ground, plainly, when the shaft is revolving. At that time this shaft was revolving about 50 revolutions a minute.”
Plaintiff testified that he had followed the mason business for forty-eight years, and said : “ I have had accidents before. I had one when I worked on the Syndicate block. 1 think it was due to my carelessness. I stepped upon a plank and it tipped up and I fell into the cellar. I had an accident when I built a building at Wolcott. I have had a good many of them. I don’t think I have the reputation among the masons of being rather reckless and careless in putting up scaffolds and in working around dangerous places. I don’t know as I am a little more careless in those matters than the general run of masons.” He also testifies: “ I knew there was a shaft there., * • * * Only I looked up and knew the shaft was there.” “I'passed under there of course for my own convenience in working. I had to bend .over to get under there. The shaft was. not as far up from the platform as my hip. was from the floor; I think I got down on my knees ; I got down on my knees . and crawled under ; got under that way.”
It appears by the evidence that, when he was passing under the shaft, his clothing was caught and he was carried around several times until the shaft was stopped, and that he received a broken arm and a broken leg and was otherwise injured.
(1) The evidence failed to establish the relation of master and servant between the plaintiff and the defendant. (Russell v. Buck[512]*512hout, 87 Hun, 46; Olive v. The Whitney Marble Company, 103 N. Y. 292.)
In the course of the body of the charge the learned trial judge said : “ The rule of law in regard to master and servant, if you find that that relation exists here, is, that it is the duty of the master; where he puts the servant in a dangerous place to work, to guard him against the perils and dangers of his position. That is only so, gentlemen, I will charge, with reference to the servant and the master. If you find here that the relation of master and servant existed between this defendant and this plaintiff, then you can apply that rule.” Later the court instructed the jury, viz.: “ The jury may take into consideration all the facts and circumstances in regard to this case, and find for themselves what they think the fact is in regard to his position, whether the plaintiff was there in the condition
(2) The evidence tends strongly to indicate that the plaintiff took the risk of the situation when he sought to pass under the shaft, which he knew was in motion. He had been in and about the premises a sufficient length of time to become conversant with the shaft and all-its conditions when-in motion.
In Cobb v. Welcher (75 Hun, 283) it was said that, even under the Factory Act, the proprietor of a factory is not an insurer of the safety of his employees, nor does it require him “ to guard against extraordinary accidents which careful and prudent men could not foresee or anticipate as liable to occur.”
In chapter 673, section 8, of the Laws of 1892 it is provided that “ all vats, pans, saws, planers, cogs, gearing, belting, shafting, set screws- and machinery of every description therein shall be prop[513]
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Hardin, P. J.:
From the evidence it is quite clear that Holbrook owned the premises where the wall was being constructed, although the same had been for some considerable period of time in the possession of the defendant. Holbrook entered into an agreement with the plaintiff and [510]*510his partner, Petrie, to perform services in the erection of a wall at the price of four dollars and fifty cents per thousand brick. They commenced the erection • of the wall, and after it had progressed so as to require a platfor'm to work upon they built a platform or scaffold on the. south side of the wall next adjacent to the property of the defendant. It appears that when they commenced the'erection of the wall Holbrook remonstrated with them very strongly against building a scaffold on the south side of the wall, insisting that it would interfere with the. business of the defendant, and expressed his strong desire to have them build a scaffold on the north side of the wall. However, they persisted in using the south side for the erection of the scaffold. After they had erected the wall so far as was convenient by means of the first scaffold, they erected a second one, which came within some two and a half feet of the shaft, and they placed runways from the scaffold' in a southerly direction into the premises of the defendant. The business of the defendant was in progress, and it was in daily use of the machinery in' its building, using the shaft for the purpose of propelling the same during the whole period of time that the plaintiff and his partner were engaged in the erection of the wall. Prior to the commencement of the erection of the brick wall the plaintiff and his partner had erected a foundation wall of stone under a contract to do the same for $284. The contract for the erection of the brick wall was made with Holbrook.- It was not in writing. At the time they commenced the erection of the wall the premises north of it were vacant and there was an entrance to the property from Bridge street. It appears that when Holbrook remonstrated with them for using scaffolds bn the south side instead of on the north side, they replied:. “ It would be more trouble to scaffold it, to put up a scaffold there ; they could build on the scaffold with very little scaffolding; they insisting upon building on that side.” '
Petrie testifies : “ It would have been possible to have had one mason work on the east side of the shaft and another work from the west side to him and not have anybody pass under there. We didn’t lay this wall from the north . side because it would have cost about $10 more for building the scaffolding, and it was the handiest to lay it on the side we laid it on.”
[511]*511Evidence was given tending to show that neither Horton, nor Petrie nor any one in their behalf ever requested the defendant to stop the shaft.
Seeber, an architect, who prepared the diagrams that were used in evidence, testified : “ The distance from the bottom of the post to the shaft is 12 feet 6 inches as I remember it. The shaft is two and one-half inches in diameter. The shaft is about 8 inches from the post. The outer pulley on this shaft is 18 inches in diameter.”
The witness King testifies : “ I saw Mi’. Horton at a time when he was passing under this shaft. I saw him do so the same morning that he got hurt. I heard Mr. Smith speak to him in reference to doing so. Mr. Smith says, be careful going under there, you will get caught on the shaft.” This witness adds: “ You can see that set screw standing on the ground, plainly, when the shaft is revolving. At that time this shaft was revolving about 50 revolutions a minute.”
Plaintiff testified that he had followed the mason business for forty-eight years, and said : “ I have had accidents before. I had one when I worked on the Syndicate block. 1 think it was due to my carelessness. I stepped upon a plank and it tipped up and I fell into the cellar. I had an accident when I built a building at Wolcott. I have had a good many of them. I don’t think I have the reputation among the masons of being rather reckless and careless in putting up scaffolds and in working around dangerous places. I don’t know as I am a little more careless in those matters than the general run of masons.” He also testifies: “ I knew there was a shaft there., * • * * Only I looked up and knew the shaft was there.” “I'passed under there of course for my own convenience in working. I had to bend .over to get under there. The shaft was. not as far up from the platform as my hip. was from the floor; I think I got down on my knees ; I got down on my knees . and crawled under ; got under that way.”
It appears by the evidence that, when he was passing under the shaft, his clothing was caught and he was carried around several times until the shaft was stopped, and that he received a broken arm and a broken leg and was otherwise injured.
(1) The evidence failed to establish the relation of master and servant between the plaintiff and the defendant. (Russell v. Buck[512]*512hout, 87 Hun, 46; Olive v. The Whitney Marble Company, 103 N. Y. 292.)
In the course of the body of the charge the learned trial judge said : “ The rule of law in regard to master and servant, if you find that that relation exists here, is, that it is the duty of the master; where he puts the servant in a dangerous place to work, to guard him against the perils and dangers of his position. That is only so, gentlemen, I will charge, with reference to the servant and the master. If you find here that the relation of master and servant existed between this defendant and this plaintiff, then you can apply that rule.” Later the court instructed the jury, viz.: “ The jury may take into consideration all the facts and circumstances in regard to this case, and find for themselves what they think the fact is in regard to his position, whether the plaintiff was there in the condition
(2) The evidence tends strongly to indicate that the plaintiff took the risk of the situation when he sought to pass under the shaft, which he knew was in motion. He had been in and about the premises a sufficient length of time to become conversant with the shaft and all-its conditions when-in motion.
In Cobb v. Welcher (75 Hun, 283) it was said that, even under the Factory Act, the proprietor of a factory is not an insurer of the safety of his employees, nor does it require him “ to guard against extraordinary accidents which careful and prudent men could not foresee or anticipate as liable to occur.”
In chapter 673, section 8, of the Laws of 1892 it is provided that “ all vats, pans, saws, planers, cogs, gearing, belting, shafting, set screws- and machinery of every description therein shall be prop[513]*513erly guarded.” That statute has received interpretation in Glassheim v. N. Y. Economical Ptg. Co. (13 Misc. Rep. 174), in which case it was said: “ The owner of premises occupied for business purposes is only required to use reasonable care and prudence for keeping the property in such condition that those who go there shall not unnecessarily be exposed to danger.” In that case the belt was covered to a height of nine feet from the floor, and it was held that the machinery was properly guarded within the meaning of the Factory Act. In that case it was said: “ This shafting was suspended from the ceiling at such a height as t.o render it impossible under ordinary circumstances that an accident like this could have occurred. The court will take judicial notice that men are not nine feet high, and, therefore, without climbing up to it, there was no possibility of any danger either from the shafting or the set screw.”
In Graves v. Brewer (4 App. Div. 327), where the danger was apparent, it was held that the injured party took the risk and that the liability was not changed by the Factory Act.
In Knisley v. Pratt (148 N. Y. 372) it was held that “ 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 as otherwise.”
Although, as we have already intimated, the plaintiff was not. an employee of the defendant, we think the facts and circumstances disclosed in relation to his conduct antecedent to and concurrent with the injuries received, with the knowledge which he possessed of the shaft and presumptively of the set screw, were such that he was guilty of contributory negligence at the time he received the injuries of which he complains. The evidence found in the appeal book fails to satisfy us that he was free from contributory negligence.
The foregoing views, if adopted, lead to a reversal.
All concurred.
Judgment and order reversed and a new trial ordered, with costs to abide the event.
Sic.