On August 19, 1911, while plaintiff was in defendant’s employ, his hand was caught between the shaft and a piece of metal variously called a ‘ ‘ cone ” or a “ face plate ” on a machine upon which he was working. For resulting injuries he brings this action, and defendant appeals from a judgment against it and from an order denying a motion for a new trial.
The statute provides that " All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery, of every description, shall be properly guarded.” (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 81, as amd. by Laws of 1910, *439chap. 106.)* One of the allegations of the complaint was failure to guard the shaft at the point where the injury was caused, and the learned trial court submitted to the jury the question, among others, “whether or not this machine was properly guarded,” and at the request of plaintiff’s counsel further instructed the jury “that the risks occasioned by the failure of the employer to supply the statutory safeguards, above referred to, were not as matter of law assumed by the employee, though he had full knowledge of such failure.” (Fitzwater v. Warren, 206 N. Y. 355.) “ A machine that is maintained wholly without guards is presumptively contrary to the statute. The burden of showing that it is impracticable to guard a machine, or that its location removes it from danger to employees, is upon the person or corporation maintaining it.” (Scott v. International Paper Co., 204 N. Y. 49.)
While defendant was examining as a witness the manager of its works, who had had twenty-three years’ experience in that position, he was asked, “Is it customary to guard a machine where the gears have to be shifted in that way ? ” and again, “Is there any way by which that machine at that point could have been guarded, and carry on the work properly ? ” To each of these questions objection was made, although not specifically upon the form of the question; the objection was sustained, and defendant excepted. Construing these questions together, it is apparent that the answers which they would have elicited might have shown that it was not practicable to guard these cogs, and that the statute which only required defendant to “ properly ” guard the same had no application. Such evidence would be competent.
Without further discussion I advise that the judgment and order appealed from be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide event.
The statute is materially amended by chapter 286 of the Laws of 1913. —[Rep.