Gelder v. International Ore Treating Co.

Miller, J. (dissenting):

. The statute provides: “All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery, of every description, shall, be properly guarded ” (Labor Law [Oonsol. Laws, chap. 31; Laws of 1909, chap. 36], § 81, as amd. by Laws of 1909, chap. 299, and Laws of 1910, chap. 106). The machinery upon -which the plaintiff was injured was called a “jointer.” It consisted of a steel table, with an opening in *189the center through which revolving knives projected. The risk in running it was precisely like that involved in running a circular saw, one of the machines specifically enumerated in the statute. The danger was so obvious that but for the statute (Employers’ Liability Act [Laws of 1902, chap. 600], § 3; since revised by Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 202, as amd. by Laws of 1910, chap. 352) the servant would be held as matter of law to have assumed the risk. (See Proctor v. Rockville Centre Milling & Const. Co., 141 App. Div. 900.) I am unable to perceive, therefore, how there was any question of fact as to whether the master should have anticipated the danger. The case is not like those in which the piece of machinery is so located as to be removed from danger to employees, e. g., a set screw from' fifteen to eighteen feet above the floor (Glens Falls P. C. Co. v. Travelers’ Ins. Co., 162 N. Y. 399), or a printing press protected by a heavy iron frame (Kimmerle v. Carey Printing Co., 144 App. Div. 714). The danger was obvious as á matter of law; the plaintiff’s assumption óf it is another matter which is now governed by the statute.. The only question, therefore, on that branch of the case was whether it was practicable to guard the projecting knives, and that was submitted to the jury.

Moreover, the burden was on the defendant to show that it was impracticable to guard the machine or that its location removed it from danger (Scott v. International Paper Co., 204 N. Y. 49), and it offered' no • evidence on the subject. Of course, the steel table guarded the part of the knives below it, but the projecting part was the thing to be guarded, and there was no attempt to guard that. Within the Scott case, therefore, the machine was presumptively maintained contrary to the statute, and I am unable to discover any evidence in the record to rebut that presumption. There was evidence that it was practicable to guard the projecting part of the knives, which, I think, any one who had ever seen such a machine could determine from a mere description of it. We have then the case of a mandatory duty, imposed for the benefit of plaintiff, which the defendant violated to the plaintiff’s injury.

I am aware that it has been said in many cases that the vio*190lation of- a municipal ordinance or a statute is evidence of negligence. But in all of those cases other elements were involved in the determination of the question of the defendant’s negligence. Either the duty violated was not mandatory as to the plaintiff or its violation was not the immediate cause of the injury. In this case the plaintiff was injured by the violation of a. mandatory duty imposed for his benefit, and without the intervention of any other cause. Negligence is the violation of duty. Surely it would not have been error for the court to charge that it was the mandatory duty of the defendant to guard this machine, if it was practicable to do so, the danger being obvious. How then can it be said that it was error to charge that the defendant was negligent if it violated that duty ?'

The judgment should be affirmed.

Laughlin, J., concurred.

Judgment and order reversed, new - trial ordered, costs to appellant to abide event.