(dissenting) :
The plaintiff, a boy about sixteen and one-half- years of age, while at work as “ backtender ” of a machine used in the manufacture of paper in the defendant’s mill, had his hand drawn in between two rapidly revolving iron -rollers and injured, so that amputation at the wrist became necessary.
The machine was some seventy-five feet in length, consisting of two sets of horizontal metal rollers, one set known as the “ drier ” rolls and the other as the “ calender ” rolls. The drier rolls were hollow, three feet in diameter, filled with steam for drying paper, and arranged eight on the bottom row and seven on top. The paper is fed into the drier rolls at one end known as. the wet end, being then of a pulpy consistency, and run over the. drying rolls is dried out, and is then perfect paper except that it is required to be smoothened or calendered.
The calender rolls consisted of ten steel rollers set up in a vertical stack, one directly above another and resting on the next one below it of its own weight. These rollers were about eight feet long, larger at-the bottom and smaller toward the top of the stack. The bottom roller was fifteen inches in diameter, the one next above twelve inches, etc. The place of contact between the two bottom rollers, called the “ pinch,” was some thirty inches above the floor. The calender stack stood at the end of the drier rolls and was placed so that there was a space of two and one-half feet between the drier and calender rolls. In the operation of the machine the paper was dried out bj the drier rolls, and rah between the last drier roll-and the “ spring roll,” so called, up between the two top calender rolls and down to the bottom of the calender stack by passing round back and front respectively of each alternate roll. After passing *730through between the two'lower calender rolls the finished paper ■ fan upon a reel or winder.
In the ordinary operation of the inachine the,paper often broke at a point between, the drier and calender rolls. The. breaking of the paper at this point was of' frequent occurrence,' two or ■ three, and often more times a day. When this happened-the paper coming over the driers would wind around the ,last roll and accumulate."' In order tó start the sheet through the calender rolls againr the operator would take a knife, go into the space between the drier and calender rolls, and cut the paper on the last drier; cutting it the-entire .length of the roll. When this was done the paper Would run down into the space between the drier and calender rolls and . accumulate on the floor. Then, to get it away, he would take hold of some part of the paper which had.accumulated on the floor and shove it between the two bottom calender rolls. The rolls would take up the slack and carry it off. This waste paper would then drop on the floor in a pile on the other side of the calenders. When the slack was taken up and the paper was running clear from the bottom drier rolls to the bottom calender rolls the operator would ' snap the paper" off between the drier and calender rolls, carry the end up to the top of the calender rolls and put it between the top rolls, An operator on the opposite side of. the calenders would see that the paper came back through the next pair of rollers,, and so on until it Was running regularly.
Three men usually operate the machine. The machine tender has charge of the piachine. His usual place of duty is at the wet end of the machine. There is then the backtender,,who assists the machine tender, and whose duty it is usually to handle the paper when it breaks at the calender end of the machine. The other man is known as the “ third hand.” ■
Prior to the time of the accident the plaintiff had been working in the plant about eleven months. He Was first employed in the pulp mill. ' After working in that department a month and a half he went to work oiling machines. Then he was' engaged in painting about the. factory; from that back to oiling again about a month and then he was employed as third hand on this machine. He had worked in that position about three months next prior to the'accident.
On the day of the accident the backtender did not come to work, *731and Adams, defendant’s superintendent, directed Flay, the foreman, to have the plaintiff do the work for that day, which Flay did, and had another employee take third-hand work.
The plaintiff was the only witness as to the manner in which the accident occurred. The paper broke several times the day of the accident. His testimony is: “ Flay (told me to) go and do the backtending. * * * I then stayed around all day that day until it broke, and Mr. Brown (the machine tender) did the backtender’s work. The paper broke at the calenders and I went to do it. That day I did the same as third hand work. I stayed there until the paper broke at the calenders. I went to do it and Mr. Brown did it. He fixed the paper so it would run.- It broke later and he did it every time until about * * * half-past four it broke, and he was down cleaning up the screens, and I went in to do it, and I cut it off and it fell on the floor, and I went to stoop over- to pick it up, and I had my hand on it, and all at once it went in itself. I had not put the paper through there before. * * * I went and cut it off, and I. had to jab at it lots when I come to cut it off, and it all piled on the floor and I put my right hand down to grab it and put my other hand on the top to shove it in, and all at once it went quick just so fast, and pulled my hand in so I didn’t know where it went. .1 put my right hand in it. There was paper under my light hand and paper over my right hand. My left hand was on top of that that just came out. * * * It piled up fast. When my hand went in with the paper it went between the rollers. I guess the two bottom * * * calender rolls.”
The complaint states a cause of action under the Employers’ Liability Act (Laws of 1902, chap. 600). It alleges the- giving of the notice to the defendant required by the act, and that the defendant caused the ways, works and machinery of the mill to be and remain defective, because of which and the absence of instructions in regard to the danger thereof, the plaintiff was injured.
The court held that the' plaintiff had failed to prove a cause of action under the Employers’ Liability Act, but that the complaint sufficiently stated a cause of action at common law.
The question submitted to the jury was whether the defendant was negligent in failing to properly instruct the plaintiff in operating the machine- as backtender.
*732Bo instructions were given to the plaintiff at the time he was directed to do the work of a hacktender. It was known to the superintendent that the plaintiff ,had been familiar with the operation of this machine for some eleven months. As oiler he was over and around every part of the machine a month at a time for two months. His work as oiler and third hand made him acquainted with the duties of a backtender. While at work as oiler and third hand he had seen the paper break between the rolls several times daily; saw the paper pile upon the floor" and the operation of cutting the paper from the drier roll and running the waste through the bottom calender rolls. He says, he did not himself attempt to do that part of the work, on the day he was put at backtending, until about half-past four in the afternoon, but it broke several times during the day.and was fixed, he says, by Brown. Brown says that he put the paper through the calenders several times the day of the accident; that Makin tried several times during the day to cut "the paper from the dry roll and he (Brown) had to help him because, he says, “ I could get it off quicker; ” that Makin saw him cut the paper and start it through the calenders. Brown, who was called as a witness for the-plaintiff, says that it requires skill to do the work of cutting the paper off from the dry. roll and putting it through the calenders without getting caught; that the only particular danger is in getting the hands of the operator caught- in the calender rolls; that there is no danger attendant upon cutting off the paper from the dry roll. The machine at this part is simple in operation and-the danger is apparent. Every one knows the result of putting the band between two rapidly revolving heavy -steel rollers. The plaintiff on his cross-examination testified : “ Q. Why did you go in between the dry rolls and the calender rolls on that day ? A. Mr. Brown wasn’t there and I was supposed to be back-tender. * * * Q. How did you know, nobody had told you, that was the thing to do ? A. The foreman told me to be backtender. Q. How did you know what a backtender had to do ? A. I just seen them monkeying around theré; I was not doing that at the time I was hurt; I had hold of the'paper. Q. You were doing what you had seen others do?. A. Yes, sir. Q. The same thing ? A. Yes, sir. Q. And that is the reason you went in to do it, wliat you had seen Mr. Brown do ? A. Yes, sir; I had never seen anybody else *733put the paper through there besides Mr. Brown. Q. How did you know the paper had to go through there ? A. I knew they jabbed it because when I was oiler I often saw them shoving them piles, putting it in.' Q. You had seen them when you .were oiling? A. Yes, sir; I hadn’t seen them as third hand. Q. When you went to work as baektender from what you had seen them do when you were oiling you knew the paper had 'to go through ?. A. I knew it had to go through ; I didn’t know how it had to go through ; I didn’t take any particular notice how they did it; I know they pushed it or something. Q. You knew, they put it between these rolls? A. Yes, sir. Q. So that was what you were doing? A. That is what I tried to do. Q. That .is what you were trying to do at the time? A. What I tried to do; yes, sir. Q. And that was the time you got your fingers pinched ?. A. Yes, sir. * * * Q. How did you know it had to go through the bottom pinch at the time ? A. Because I had seen them put it through. Q. Seen who put it through ? A. The backtenders. Q. While you were working as what ? A. Oiling around. Q. And as third hand ? A. I might have seen them once or twice. Q. You knew that was the thing to do when the paper broke, did you? A. Yes, sir. Q. After the paper broke and after you got up there what did you intend to do with the paper ? A. Try to put it through the top. Q. You knew that was what they did with the paper after it broke ? A. Yes, sir. Q. So you were just getting ready to go ahead and do those things, is that it? A. Yes, sir.”
It thus appears that he had often seen this particular work done, knew the whole operation and in the absence of- Brown attempted to perform it. Ho oral instructions would have given him any further information than he already had as to the manner of doing the work and the dangers attending its performance. Under, the. circumstances it cannot be held that the master was negligent in failing to give instructions. (Crown v. Orr, 140 N. Y. 450; White v. Wittemann Lithographic Co., 131 id. 631; Buckley v. G. P. & R. M. Co., 113 id. 540; Ogley v. Miles, 139 id. 458.)
In Crown v. Orr, the plaintiff,’an infant, was directed to place a ■hood on a planing machine, in place, which was about eight inches in front of the knives. In doing this his hand was caught by the knives gnd, he was injured. He had not been employed to operate thig *734machine; It was .held that,, assuming plaintiff received the order as testified to, this and the failure to give instructions did not charge the defendants with personal negligence; that plaintiff had full opportunity to observe the manner of handling the hood and placing it upon the machine and it was not negligence to request him to put it in place without instructions, especially as he asked for none,' and showed in nó way that he was not familiar with the method of doing it;. that if the Operation was especially dangerous without instructions, the danger w.as obvious and he was not bound to obey the order, and iff " doing that he took the risks. / ■
The plaintiff here was put at backtending, one of the duties of which was to cut.the paper from tlie.drier when.it broke, and put it through1 .the calenders. It seems, however, that the plaintiff - was not required to do this particular part of the work. • Through the day until the plaintiff attempted it, this part of the work was done by Bibwn, the machine tender. f The plaintiff was told to go and-'doth e backtending; he says, “I.then stayed around all-day that day until it- broke, and Mr, Brown did the backtender’s work. The paper broke at the calenders and I-went-to "do it. That day I did the same as third hand work. I stayed there until- the- paper broke a-t the calenders* I went to do it and Mr. Brown did it. He fixed the paper so it would run. It broke later, and he did it every time until about * - * * half-past four .it broke, and he was down cleaning, u-p the screens, and I went in to do it.”
In Ogley v. Miles, the plaintiff, a boy sixteen years, of age, was' operating a buzz.saw; his hand came in contact with the saw, and he was injured. He had only been engaged -in the work for the defendants two days, b.ut had experience in other factories and understood the practical working .of the machine. It was held that, the-omission'to give the plaintiff oral information of the dangerous character of the buzz saw did not make the defendants liable.
In White v. Wittemann Lithographic Co. it was held that in an action to recover.damages for injuries received by an. infant who-is sui juris, from coming in contact with machinery while in defendant’s employ, proof that the employer omitted to instruct the employee as to using the machinery did not impose liability upon the former, provided the latter knew by experience or observation the • ¿nature of the machinery and the danger to be-apprehended from it,
*735About a month before the accident to the plaintiff, two additional drying rolls were put into the machine, which narrowed the space between the drying and calender rolls from five and one-half to two and one-half feet.
It appears that after this space between the rolls was narrowed, the* paper which accumulated upon the floor when broken, frequently filled up the space between the rolls, and occasionally caught of itself and went between the calender rolls. This the plaintiff swears he had not observed prior to the accident.
The point is made that the defendant was negligent in not instructing the plaintiff that paper would go in between the calender rolls of itself.
It was not shown that this rendered the operation of cutting the paper and putting it through, the calender rolls more dangerous than before, or that there would have been the slightest difficulty in extricating one’s hands from the paper. Brown says that if the paper running on the floor is not kept down with the feet while cutting the paper, it will sometimes catch and go in the calenders itself and start running through ; it is liable, he says, to do that, whether you do the best you can with your legs to keep it in front of you. But his testimony is, that the particular danger is to keep the hands from getting caught in the calenders. It was the only danger he knew. of. It was apparent that, if the paper was allowed to accumulate and pile up against the calender, it was liable to be drawn in. The paper going in between the calenders of itself was not the occasion of the accident. The plaintiff, after Stating that he cut the paper and it fell on the floor, testified : “ Q. What were you trying to do at the time you picked up the paper ? A. I was going to put it in. Q. In between the calenders ? A. Tes, sir; I didn’t pick it up; I was just going to pick it up. ' I had one hand in the folds and the other hand on top. My hands came in contact with the paper. I was not shoving it towards these calender rolls.. Q. What were you doing with the paper at the time ? A. Just got hold 'of it, trying to push it in. Q. Ton were j,ust trying to push it in ? A. Mo, sir.- Q. What do you mean ? A. I just took hold to try to push it in. Q. Tou knew it had to go through there then? A. Tes, sir. Q. And you knew it was your business to put it through there ? A. Yes, sir. Q. And so that is. what you were *736just getting ready to do? A. Yes, sir:” From this it a-ppears that the. plaintiff had his hands in and upon the paper for the purpose of putting it between the calenders.
If there was force sufficient of itself to draw the paper in, liability of getting the hands caught was. no greater than if the paper was being pushed in by hand. ‘ There was no evidence that the paper going in of - itself had ever caused .an injury’to any onq. If there - was danger of injury from this cause it was unknown to every one- employed about the machine; unknown to the defendant, and, therefore, the injury to the plaintiff was the result of an accident which could not have been foreseen.
In Hickey v. Taaffe (105 N. Y. 26) the plaintiff, a young girl about fourteen years and seven months old, was employed by defendant in his laundry to feed collars to an - ironing machine-. She Was instructed how to do the work, but was not instructed as to the danger of the employment. She worked the machine safely, however, for six weeks, during which she became acquainted with and fully appreciated the danger to be apprehended from allowing her hand to be caught between, the rollers of the machine, which was of a kind ordinarily used. There were several of the kind in use in the laundry, and no operator or feeder had ever been caughh After one end. of the collar had passed through the rollers, in endeavoring to straighten out the other end, which lapped over, one of the plaintiff’s fingers was caught in the button hole and, being unable to extricate it in time, her hand .was drawn between the rollers and badly' crushed and burned. In an action' to recover damages it was held that the defendant was not liable, conceding that there was a neglect of duty on the part of the defendant'in’ not advising plaintiff of the dangers.to be apprehended; the injury did not occur on account of any act done or omitted on her part because of want of knowledge or appreciation of the dangers, 'but was the result of an accident which could not have been foreseen and for which no one was at fault.
Within the principles of that case, as well as the rules generally applicable to the case here, the motion for a nonsuit should have been granted.
The judgment should bé reversed.
3 udgment and order affirmed, with costs.