The plaintiff, a lad nearly fifteen years of age, was employed at a machine in defendant’s factory. The machine was surrounded on the sides and back by a platform about nine inches from the floor, and as the operator faced the machine the platform on his left was about a foot wide, and' on his right about fotir or five feet wide. Around the platform was a railing made of pipe, the upper piece being about four feet from the floor ánd the. lower one about a foot and a half. This railing was set in the floor and except for an opening some two feet at one of the rear corners, surrounded the platform on the three sides, and was not more than an inch or two from its edge. The platform and railing did not extend past the front of the machine on either side, at least to any extent, and between the front of the machine and the wall was a space of two feet or more. The plaintiff, while engaged at work, sat on a bench which rested on the floor in front of the machine, and directly behind him was a window. At the rear of the machine, four feet from the front, were two cog wheels.in vertical position, the upper one being three or four feet in diameter and the lower one somewhat smaller. The plaintiff’s work was to punch holes in pieces of *597tubing, inserting them in the machine one by one, and operating the press by means of a pedal. On the day of the accident his right hand was caught between the cog wheels and injured in such a way that several of the fingers had to be amputated. He claims that his injuries were caused by defendant’s negligence, in that it permitted grease or other substances to accumulate upon the platform where he was put to- work and because the defendant had neglected to encase or cover the cog wheels. He had a verdict of $7,000, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.
The plaintiff testified, in substance, that he.had been at work operating the machine something like two weeks; that the tubes to be punched, which were about a foot and a half long, were brought to him in a box, which was placed at his left hand; that after punching the holes in the tubes he was directed to replace them in the same box and no other one was provided for him; that after a tube had been punched, he would throw it on the platform at his right until a sufficient number had accumulated, when he would wipe the oil from them, as he had been directed to do, and replace them in the box ; that the platform was very greasy and slippery from oil from the machine and tubes; that he complained of this to the foreman prior to the accident, but was told not to mind it, but go ahead with his work; that while he was picking up the pieces of tubing which he had thrown upon the platform, his foot slipped; he threw out his-hand to save himself, and in that way the accident occurred. He was the only witness produced on his behalf, and the material parts of his testimony are not corroborated.
On the part of the defendant several witnesses were produced, who contradicted the plaintiff in many respects. The witness Walsh, who was not employed by defendant at the time of the trial, but was at the time of the accident, testified that lie was the one Who employed the plaintiff and put him at work; that he had worked at the machine about three months when the accident happened ; that he never made any complaint to him of the condition of the platform, or of its being slippery or greasy; that the plaintiff’s work did not require him to go upon the.platform or to have anything to do with the machine, except to operate the pedal; that his work consisted of putting the tubing in a proper place and then *598starting the machine, and when the holes were punched removing it from the bed of the machine and putting it in a box on, his right-hand side, and when the same was filled taking it to the proper "department; that boxes were furnished for "that purpose) and he was using one on the morning of the day the accident occurred; that there was no grease or oil on the tubing or platform. He further testified, which is uncontradicted, that occasionally some of the tubing would fall on the floor, and to prevent its getting near the machine or inside the railing, the platform was put up.
The witness Munn testified that on the day of the accident he was foreman of the. polishing department, and was at work within twenty feet of the plaintiff when he was hurt; that his attention was called to tlie accident by seeing two or three men running that way, and he went immediately to the plaintiff’s assistance ; _ that his right hand was then in between the cogs; that the plaintiff had been at work upon the machine upwards of a month; that when the plaintiff had filled the box with tubing it was his duty to take it into the witness’s department; that there was not any oil or grease on the tubing, and that he never noticed any on the floor; that if there were grease on the tubing, there had been no occasion for plaintiff to wipe it off, because it would be in better condition for polishing with the grease on.
The witness Alfers testified that he was also employed in the factory on the day of the accident; that the plaintiff, obtained the tubing which he punched from his department; that it was in a box which he had on his left when he was operating the machine, and that the witness told him to get a box to put it in after he punched it,, so as to save time ; that he had seen the plaintiff throw pieces of tubing on the platform and had cautioned him not to do it; that he had seen the plaintiff go through the railing and across the platform, and had stopped him and told him not to go there; .that he would “ dó that once too often.”
The plaintiff was recalled and admitted- that there were other boxes in the factory, but testified that he was told to. put the tubes in the same box in which they came,. He did not deny that he was told by the witness Alfers not to throw them on the platform, or that he was told by him to keep off the platform. Mor did he contradict the testimony of the witness "Walsh, or offer any testimony *599to the effect that the platform was not built for the very purpose of preventing the tubing getting inside the railing and near the machine.
At the close of the trial, therefore, the facts were uncontradicted that the defendant had substantially inclosed the machine with an iron railing, and in addition to this had built a platform to prevent the tubing, when thrown on the floor, from getting inside the railing and near the machine; that the plaintiff had been told not to throw the tubing on the platform, and also told not to go there himself ; and that there were boxes in which he could put the tubing after he had punched it. Under such a state of facts I do not think it can be said the defendant was negligent, and a finding to that effect is against the weight of evidence. Mot only this,• but the evidence does not satisfactorily show that plaintiff himself was free from negligence. He knew, according to his own testimony, that the platform was slippery, and that the cog wheels were not covered. His right hand is the one that was injured. The platform upon which he went was at least four feet wide, and the cog wheels were located at least four feet from the front. He, therefore, had to travel this distance and then turn halfway around in order to get his right hand between the cogs. Mo explanation is given why he had to place himself in this position and directly in front of the machinery which injured him.
In either view, therefore, it seems to me that justice requires there should be a new trial.
■ The judgment and order appealed from is reversed and a new trial ordered, with costs to appellant to abide event.
Pattebsou, P. J., and Houghtou, J., concurred; Laughliu, J., dissented.