On the prior appeal (12 A D 2d 467) we reversed and ordered a new trial because we were unable to determine from the evidence or from defendant’s exhibit of the machine whether the bases offered by the experts in support of their respective opinions were valid. In my view we did not impliedly or otherwise hold that plaintiff had made out a prima facie ease. (Cf. Politi v. Irvmar Realty Corp., 13 A D 2d 469.) The present record demonstrates there is no actionable negligence on the part of defendant manufacturer. The proof in plaintiff’s case establishes faulty maintenance and not faulty design or construction. The issue of faulty design or construction was purely in the realm of speculation.
The duty of maintenance was on plaintiff’s employer and not the manufacturer of the machine. Beckhusen v. Lawson Co. (9 N Y 2d 726) is not to the contrary. Beekhusen involved a latent defect in that the machine was so designed that its operation, while an access door was open, created a dangerous condition of which the operator had not been warned. Here, the screw, cotter pin and washer or gasket were not concealed.
The uses of and necessity for replacing cotter pins and washers or gaskets are a matter of common knowledge. The obligation of reasonable inspection and maintenance of the cotter pin and washer was that of plaintiff’s employer and not the defendant manufacturer. (Auld v. Sears, Roebuck & Co., 261 App. Div. 918, affd. 288 N. Y. 515.) A manufacturer’s duty does not extend to a patent peril, particularly when the means to avoid it, as here, are within the ken of common knowledge. (Campo v. Scofield, 301 N. Y. 468, 472.)
Plaintiff alleged negligence in the manufacture of the power press. Plaintiff’s expert testified it was good engineering practice to employ a shoulder with a cotter pin or jam nuts or a spring pin; the implication is, although there is no direct testimony, that the employment of a cotter pin as in the ea?e at bar is not good engineering practice.
*1060Plaintiff’s employer purchased the press from the defendant in January, 1954. Defendant last repaired the machine on August 20, 1954. Until October, 1954 the press was operated in one shift; thereafter it was operated in two shifts until January 3, 1955, the date of the occurrence. Subsequent to the occurrence it was observed that the castellated nut had partially backed off the threaded end of the latch, and the cotter pin was not in place. Immediately thereafter the nut was screwed on to the latch, a cotter pin inserted into the threaded end of the latch and the castellated end of the screw. Thereafter the machine performed normally for single-stroke operation and continuous operation when properly set.
The single-stroke operation required interaction between the latch 'and the rolling key to disengage the flywheel. The latch became inoperative when its splines disengaged the gear thus preventing contact between the latch protrusion or cam and the rolling key. Plaintiff’s theory is that the cotter pin disappeared in some manner not established; that the operation of the latch was attended by axial and rotational movements which caused the castellated nut to unwind from the threaded shaft of the latch thus enabling the splines and gear to disengage, thereby preventing the protrusion from intercepting the rolling key.
After the first trial and before the second trial plaintiff’s expert ran tests of the latch which demonstrated with the castellated nut backed off four or five threads from the end of the shaft it was possible for the shaft and the splines of the gear to disengage. However, the test was performed with a disintegrated washer and the thickness of one in a good state would be equal to about two threads. Defendant’s expert testified it was not possible for the latch to disengage from the gear so long as the castellated nut held three or four threads of the shaft and the washer was in position. The test performed by plaintiff’s expert was of no probative force because of the introduction of a disintegrated washer with which this defendant cannot be charged. It is not disputed that the use of a cotter pin simplified maintenance in cleaning the1 latch and adjusting the castellated nut, necessary procedures in the normal and efficient operation of the press.
Plaintiff failed to establish actionable negligence and the complaint should be dismissed.
Botein, P. J., Breitel and Stevens, JJ., concur in Memorandum by the Court; McNally, J., dissents in opinion in which Eager, J., concurs.
Judgment in favor of plaintiff for $117,366.35, reversed on the law and the facts, etc. Settle order on notice.