Apart from any statute it is the duty of employers to furnish a reasonably safe place for their employees to work. Section 81 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192) provides that all set screws shall be properly guarded. In Glens Falls Portland Cement Co. v. Travelers' Ins. Co. (162 N. Y. 399) the court, in speaking of the Factory Law (Laws of 1886, chap. 409, § 8, as amd. by Laws of 1892, chap. 673), which contained substantially the same provision as said section 81 of the Labor Law in regard to guarding machinery, say : “ There are but few cases to be found in our reports in which the provisions of the Factory Law have been construed, and those cases afford but little aid in construing the provision here involved. The manifest purpose of the enactment was doubtless to give more force to the existing rule that masters should afford a reasonably safe place in which their servants are called upon to work. We think, however, that the Legislature could not have intended that evexy piece of machinery in a large building should be covered or guarded. This would be impracticable. What evidently was intended was that those parts of the machinery which were dangerous to the servants whose duty required them to work in its immediate vicinity should be properly guarded, so as to minimize, as far as practicable, the dangers attending their labora.”
The court in submitting to the juxy the question of the defendant’s negligence in this case, assumed that the plaintiff was entitled to have the jury consider the provisions of the Labor Law as bearing upon the question of its duty in furnishing to the plaintiff a reasonably safe place in which to woi’k. It cannot be said as a matter of law that the defendant obeyed said statute and that the set screw was properly guarded. Whether the set screw was or was not properly guarded within the terms of said statute is a question of fact. It is said in Glens Falls Portland Cement Co. v. Travelers' Ins. Co. (supra): “ The necessity for the guard, and the character and *51description of the guard, must, of necessity, depend upon the situation, nature and dangerous character of the machinery, and in each case becomes a question of fact. We think, under the evidence in this case, a question of fact was presented for the determination of the trial court, and that it could not be held as a matter of law that the screw in question was not properly guarded.”
The majority of this court in Shaw v. Union Bag & Paper Co. (76 App. Div. 296), in referring to section 81 of the Labor Law and to an injury to a painter’s helper caused by a set screw, said: “ Does the act in question define the duties^ of an employer towards an employee under such conditions ? I think not. As stated in the act, it is for the 6 protection of employes operating machinery.’ That is, those whose duties require them to work about machinery in motion; those who cannot do their work except when assisted by such motion, and, therefore, must work in the midst of it.”
I express my individual opinion in saying that this act should be construed in view of the general purpose of the act and for the benefit of all employees whose duties require them to work upon or in the immediate vicinity of moving machinery. The special danger arising from the failure of an employer to properly guard machinery is as great to employees who are required to perform their work upon or in the immediate vicinity of moving machinery when such work is not assisted by the motion of the machinery itself as to those employees who cannot perform their work without the assistance of such motion.
The language of the catch words at the beginning of section 81 of the Labor Law (as amd. supra) containing the direction in regard to properly guarding machinery should not be held suflScient to materially limit the purpose of the act. The case of Foster v. International Paper Co. (71 App. Div. 47) is one where the accident occurred while the machinery was being installed for use.
A set screw is not readily seen when a shaft or machine to which it is attached is in motion, and the serious consequences of being caught on a revolving shaft or machine makes an uncovered and unguarded screw which extends beyond the general surface of the shaft or machine a thing of peculiar danger.
There is evidence that the danger in this case had been recognized by the defendant and that the set screw had been guarded by a cov*52ering of boards. If such covering had not been removed or it had been promptly replaced after a temporary removal, it is reasonably certain that the accident to the plaintiff would not have occurred.
Whether the court was right in assuming that the plaintiff was entitled to have the jury consider the provisions of the statute as bearing upon the question of the defendant’s duty toward the plaintiff, or not, I do not think upon the evidence in this case that it should be said, as a matter of law, that the defendant furnished the plaintiff a reasonably safe place in which to do his work.
Notwithstanding there were questions of fact in the case that required its submission to the jury the trial court decided that the verdict was against the weight of evidence and directed a new trial. It was held by this court in Larkin v. United Traction Co. (76 App. Div. 238) in substance that a judge presiding at a jury trial may set aside the verdict and direct a new trial although the case is one that was necessarily submitted to the jury, and in many cases even where the evidence given was sufficient to sustain the verdict.
On the facts, the order for a new trial made by the court upon the judgment of the justice presiding at the trial as to the advisability of having the case presented to another jury, must stand.
All concurred; Chester, J., in result.
Order affirmed, with costs to abide event.