The action was for injuries sustained by plaintiff while in the employ of the defendant.
For some months prior to the accident plaintiff had been engaged in the operation of sawing machines in defendant’s car shops at West Morrisania. The injury resulted from the unexpected starting of the machinery while plaintiff was engaged in changing saws. It is alleged that the starting was occasioned by the fact that the square bolt or pin, which holds the weight or binder from the belt, called the lever pin, had become so nearly round by frequent use, that it slipped out of the square slot into which it was entered, thereby causing the weight or binder to drop upon the belt and start the saws.
The defendant’s evidence tended to show that the plaintiff, having full knowledge of the existence of the defect complained of, nevertheless continued to use the machinery until the happening of the accident. If such were the fact, defendant is not chargeable with the consequences resulting therefrom. (Powers v. N. Y., L. E & W. R. R. Co., 98 N. Y. 274; Monaghan v. N. Y. C. & H. R. R. R. Co., 45 Hun, 113.)
But upon this point the evidence was confiieting, and thus was presented a question of fact for the jury.
The counsel for the defendant, at the close of the charge, requested the court to instruct the jury “that if the plaintiff knew or had notice that the machine was out of order, and with this knowledge placed his left hand upon the saw, that the placing of his hand upon the saw, with this knowledge and under the circumstances, constitutes contributory negligence, and the plaintiff cannot recover.”
The request was denied and an exception taken.
•Inasmuch as the court had omitted to instruct the jury upon this subject previous to the making of the request, the refusal to charge as requested was error. (Lanning v. N. Y. C. R. R. Co., 49 N. Y 521; Gibson v. E. R. Co., 63 N Y. 449.)
The judgment should he reversed