Appellant’s principal contention herein is that the accident in question was the result of defendant’s negligence in failing properly to guard this belt, pursuant to section 81 of the Labor Law (as amd. by Laws of 1909, chap. 299, and Laws of 1910, chap. 106). On the other hand, respondent claims that the belt was so high above the floor of the pit that it could not reasonably be expected to be a source of danger, and that, therefore, section 81 does not apply, citing Dillon v. National Coal Tar Co. (181 N. Y. 215) and Wynkoop v. Ludlow Valve Mfg. Co. (196 id. 324). We think, however, that the principles laid down in these cases do not apply to the facts of the case at bar. This pit, especially since the placing of the stock pump there, was clearly a place wherein employees at least occasionally had to be to look after the mill machinery and appliances under their charge. If the floor of the pit had been dry and convenient access thereto had been provided, a different situation would be presented. Upon such a state of facts the possibility of one *342coming in contact with the belt by standing on the pipe above the • spout might be under the authorities too remote to require the guarding of the belt. But such was not the situation as disclosed by the evidence. With over two feet of water and paper stock covering the pit floor, where was the gate, so that. the gate itself was under water, it cannot be held negligence as matter of law for employees to try to keep off the pit floor, even if they had to step or support themselves on this pipe or spout above. Nor do we think the defendant is excused in this respect as matter of law by some evidence in the case that it had provided rubber boots for use in this pit and ladders for going down. There is no evidence that the use of the ladder would have obviated the necessity or convenience of getting on the pipe to open the gate, and the evidence is at least uncertain as to whether there were any boots at hand at the time, the man in charge of the beater room saying that he did not know, but did not think the boots were there. . But whatever may have been the fact, it was apparently not the custom to use them. We accordingly think it was a question of fact for 'the jury as to whether under all the circumstances defendant was negligent in failing to guard this belt.
Respondent further claims that deceased was a mere volunteer at the time of his death; that he was a machine tender only, and consequently had no business in the pit at this time. There is no evidence in the dase exactly defining the duties of deceased, but the evidence as to what he actually did shows clearly that even subsequent to the time he became machine tender he did other work about the mill in connection with repairs. Furthermore, it appeared to be customary for him if there was trouble in the beater room and his stock was getting low so that he would have to shut his machine down to go to the beater room to help locate the trouble. On all such occasions, and particularly at the time of the accident, in view of the fact that his machine was dependent for its supply of material upon the product of the beater room, and that a shutdown there would result in his machine running out of material, we think it cannot be said as matter of law that he was acting outside of. his duties, especially when it is considered that he had for years. acted ás a general helper about the *343machinery, and so must have been more or less familiar with it all.
The judgment of nonsuit and for costs should he reversed and a new trial granted, with, costs to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.