.' The plaintiff’s right leg was torn from the body below the knee while he was attempting to comply with the directions of the defendant’s foreman, who was • in immediate charge of the work which the plaintiff was attempting to do.
The plaintiff was at work in the defendant’s factory. A belt ran from the main shaft to a countershaft. The belt had run off the pulleys. While an attempt to put it on was being made it caught *802and wound around a wooden pulley and the main shaft and the countershaft, and was pulled tight between the two shaftings. The foreman undertook to extricate the belt without stopping the machinery. lie directed the plaintiff tó assist in releasing it, while the machinery was in motion, in a ma'nner the precise details of which need not be mentioned. The plaintiff complied with the directions of the foreman. He took hold of llie belt, which started, caught his leg and took him around the shaft, completely severing his leg, as has been stated.
For this injury the plaintiff seeks to recover damages against thedefendant, contending that the injury was ca,used through the negligence of. the defendant’s foreman, and that the defendant is liable therefor.
I do not think it can be seriously claimed that it can be said as a matter of law that the foreman was reasonably careful in attempting to- extricate this belt while the machinery was in motion. The jury might well find that if the foreman had used reasonable prudence and foresight he would have foreseen that harm might come to the men engaged in the work, as it did come to the plaintiff, in doing what was attempted without stopping the machinery.
• It is, however, contended that Mullin, the shift foreman in whose immediate charga the plaintiff was at the time of the accident, was neither a superintendent nor engaged in an act of superintendence in doing what he did and in the manner in which it was being done. -
The plaintiff worked in the soda ash department in what is known as the densifieation building. This department was under the general supervision of the manager of that department. In the densifieation building there were three shift foremen. During the day time there was a general foreman, and in the night time the apparatus, room foreman upon Ho. 1, as it was called, was responsible for the whole work of the. soda ash department.
Upon the night when the accident occurred James Fogarty was in general charge, and when he was upon the floor of'the densifi cation department he was in charge, and giving his orders through the shift foreman ; but when he was not present the shift foreman was in direct charge of the department: Mr. Mullin was shift foreman upon this occasion, and in the absence of Fogarty had the *803power to run the department and'had full direction and control over the men.
Mullin testified that' at the time of this accident he had full charge of the room. When necessary he gave the orders, and he started and stopped the machinery arid gave orders to the men for whatever work they had to do, and told them how to do it. It was his duty to see how the machinery was running. He frequently had to shut down the machinery if a belt became wound around a shaft, and used his own judgment about how to extricate the belt, and to shut down if necessary, and he would do that without consulting' anybody.
In charging the jury the learned trial judge said : “If you find by reason of his position in this company, by reason of the custom of the company and the course of its business in "the past, there was placed upon this man Mullin the essential and necessary authority to take charge of the machinery and the men and appliances of the concern, for the purpose of correcting that difficulty, and readjusting that belting and putting- the machinery into running order again — if his authority-went far enough to' clothe him with power in his discretion to order the machinery stopped; and if in the exercise of that authority he proceeded as he did, then he was acting for the time being and for the purposes of this case in the position of a superintendent, and so far as the liability of the defendant is concerned his negligence would be the negligence of the defendant.”
We think the rule as applied to the facts of this case was correctly stated, and that the evidence warranted the jury ip finding the facts to bring it within the rule. The mere fact that Mullin also assisted in the manual work of extricating the belt does not change his relation to the work which- was being carried forward at that time, nor relieve the defendant from the - consequences of liis negligence as regards the particular acts of superintendence.
It was not the manual labor alone which -Mullin did in doing what was done there, but the manner in which it was directed to be done and was done under his supervision which subjects the defendant to liability. What did the harm was the failure to stop the machinery, and the directing the plaintiff and his fellow-workmen to extricate the belt while it was in motion. He had full authority to shut down the machinery and to direct the men in their work. *804They were required to obey his orders. In the absence of Fogarty he was in full charge of both the work and the men, and that was his principal duty. .
Under such circumstances we think his omission to stop the machinery, and his attempting to extricate the belt while the machinery was in motion, and in directing the plaintiff, as .he did, to assist in releasing the belt, Hu-llin was exercising acts of superintendence, for the negligent performance of which the defendant is responsible. (Faith v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 222; affd., 185 N. Y. 556.)
Other questions were raised by the defendant, hut we thinlcnone of them is such as to require or justify the granting of a new trial.
We think the judgment and order should be affirmed, with costs.
Spring, J., concurred.
Judgment and order reversed and new trial ordered, with "costs■ to the appellant to abide the event,-upon questions of law only, the. facts having been examined and no error found therein.