It is difficult to see how reasonable prudence could have dictated to the defendant additional guards to its machinery.; The opening in the floor leading to the clay machine could not have been guarded because there was' continual necessity of an open way into which the clay could be thrown into the machine. It is suggested that a rail might be put up to prevent the man there at work from falling in. It would require extraordinary foresight, however, to anticipate that a man with a. thorough knowledge of the existence of the opening should be stepping into the machine, or that a lump of clay should in this mysterious way have been carried up by the elevator buckets' and, fallen upon him, knocking him into the machine. Moreover, the size of the buckets in the elevator would-seem almost to negative the possibility of an accident occurring in this way, so that it would require great liberality in' the courts to allow a verdict to stand Upon the' ground that the defendant was guilty of negligence in failing to provide guards either for the clay machine or for the elevator.
■ -Assuming, however, that negligence might have been found in . the defendant, if there be any survival of the law of assumed risk,. the defendant must here be able to claim the benefit of that law. For two years this plaintiff had had a specific knowledge of the exact situation. It is true that the pile-of clay sometimes crowded him near to this opening in the floor into which the clay was .thrown into the clay machine. What danger was "involved therein was. known better to him than to' any other man. • To charge the defendant with liability for a defect of which he had the better knowledge *783would be to require the defendant to take better care of the plaintiff than the plaintiff is required to take of himself.
While it is difficult to see how the defendant could have guarded the clay machine, which was required to be kept open that the clay might be fed to it, it is contended that under section 81 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192, and Laws of 1904, chap. 291),* which is in article 6 thereof, relating to factories, and known as the Factory Act, the defendant has been guilty of negligence in failing to protect it by guards, and that a plaintiff with knowledge of the danger does not assume a risk from a defect which is in violation of a commandment of .the' Factory Act. This contention would seem to be answered by the decision of the Court of Appeals in Knisley v. Pratt (148 N. Y. 372). In that case it was expressly held that such a risk might be assumed. The contention of the plaintiff’s counsel, however, is that since the decision o.f that case the Factory Act has been amended so as to make a failure to comply with its provisions a crime, and it is argued that it is against public policy to hold that a risk may be assumed which arises from a defect the allowance of which is criminal bn the part of the defendant. It will be borne in mind, however, that this statute is an extension of the common-law liability, and, therefore, under well-settled rules of statutory construction, is to be construed strictly. In determining rules of common-law liability, courts very properly determine them in the light of public policy. Generally speaking, however, the public policy of the State is to be defined by the Legislature and. not by the courts. Where the Legislature, therefore, extends a common-law liability of a master,-the presumption will be'assumed that the limit of that extension is expressed in the statute itself. The amendment of -the Factory Act, which made a failure to comply with its provisions a crime, might have gone further and have provided that an employee was not to be deemed to have assumed the risk inherent in any defect which in itself is a violation of the act.' But this provision was not included in the statute, and because it was not included in the statute, and .because the statute is one extending a common-law liability, I do not agree that this court should, by judicial legislation, extend the common-law liability of the master beyond the point to
*784which it is extended by the statute itself. It is the right of the ’ courts to interpret the laws, and of the Legislature to enact them, and where the Legislature has assumed to act upon a question, it is in rare cases that the courts should give effect to their enactment beyond what the Legislature itself has chosen to indicate.
Again, it is contended that, although this is a common-law action, the 3d section of the Employers’ Liability Act (Laws of 1902, chap. 600) applies, and that under that section the question of assumption of risk was for the jury and not for the court. In O’Neil v. Karr (110 App. Div. 571), however, this court held otherwise. That case went back for a new trial. Upon the new trial the plaintiff was nonsuited in accordance with the -judgment of this court. Upon appeal from that judgment, we affirmed the nonsuit, and the Court of Appeals affirmed our judgment without, opinion. (See 115 App. Div. 881; affd., 190 N. Y. 509.) It is claimed that because our judgment was affirmed in the Court of Appeals without opinion - there probably were other questions upon which the case was decided. I have examined the record upon the second appeal- in our court, 'and the appellant’s brief consists of - a single page and states that the case is substantially as it was upon the first trial, and that, as the controlling question was there determined against the appellant, his only. request was that there should be a dissent, that he might take the question to the Court of Appeals. An examination of the facts of that case shows clearly that it was impossible to justify the nonsuit therein granted, except upon the construction given to. the Employers’ Liability Act in our decision of the case. Moreover, the case of Ward v. Manhattan R. Co. (95 App. Div. 437),' in the first department, has been expressly overruled by - the first department itself in the case of Curran v. Manhattan R. Co. (118 id. 347), and ■ that department is now in accord with the third department upon the construction of section 3 of that act.
In the case at bar the accident was an unusual one, not reasonably to be anticipated. Any attempt at guarding the machinery which caused the accident would have been, to a greater or less extent, an impediment to the work that was necessary to bé done. The danger of getting into the hole in the floor and thereby into the machinery was so apparent that a child might see it.
*785The judgment, therefore, was properly directed and should be affirmed.
All concurred, except Kellogg, J., dissenting in opinion.
Since amd. by Laws of 1906, chap. 866.- [REP.