Y. 528; Crispin v. Babbitt, 81 N. Y. 516; Neubauer v. N. Ÿ. etc. R. Co. 3 Cent. Rep. 66. The general rule of law is that the master is not responsible to one servant for an injury occasioned by the negligence of a coservant of the common employer. To this there are two exceptions: 1, when the servant, whose negligence caused the injury, was a person unfit and incompetent to be intrusted with the duty to which he was assigned, of which the master had knowledge; and 2, when the accident resulted from unsafe and imperfect machinery and appliances. Murphy v. Boston etc. R. R. Co. 88 N. Y. 151; Besel v. N. Y. Cent, etc. R. R. Co. 70 N. Y. 176. There was no evidence that the captain was negligent; and the finding of the board to the contrary is against the evidence. Leonard v. Collins, 70 N. Y. 95. Mr. A. D. Wait, for respondent: Wells, the captain in charge of the work, was an officer appointed by the superintendent of public works. 1 R. S. 7th ed. p. 629, § 15; art. 5, § 3, Const., as amended in 1877. He was more than a mere fellow servant with others, charged with a special duty; he was the general agent of the principal, placed there by the latter to direct and control the others. And in such case the master (the State) is liable to a subordinate, who has been exposed to unreasonable risk and injured from the want of due care and the negligence of one thus acting in its stead. Fort v. Whipple, 11 Hun, 587, 591, and cases cited; Flike v. Boston etc. R. R. Co. 53 N. Y. 549; Corcoran v. Holbrook, 59 N. Y. 517; Malone v. Hathaway, 64 N. Y. 5-13; Noyes v. Smith, 28 Vt. 59, 64; Ormond v. Holland, 96 E. C. L. 100; Paterson v. Wallace, 28 Eng. Law & Eq. 50: Ryan v. Fowler, 24 N. Y. 410, 413, 414. The claimant was justly and equitably entitled to an award for the damages sustained. The award appealed from in this case should be affirmed, upon the facts of the case and the law applicable thereto. Chicago etc. R. Co. v. Ross, 112 U. S. 377 (Bk. 28, L. ed. 787); Brickner v. N. Y. Cent. etc. R. R. Co. 2 Lans. 516, affirmed in 49 N. Y. 672; Flike v. Boston etc. R. R. Co. 53 N. Y. 550, 552, 553; Fuller v. Jewett, 80 N. Y. 46, 52; Pantzar v. Tilly Foster Iron Mining Co. 99 N. Y. 368; Booth v. Boston etc. R. R. Co. 73 N. Y. 40; Hawley v. Northern Cent, etc. R. R. Co. 82 N. Y. 370, 372; Stringham v. Stewart, 1 Cent. Rep. 779, 100 N. Y. 516, 526. Andrews, J., delivered the opinion of the court: We think the award in this case is in conflict with the decisions of this court defining the responsibility of employers for injuries sustained by servants while engaged in performing the service for which they were employed, resulting from the negligence of coservants. The master is sometimes responsible for the negligent act of one servant causing injury to a coservant; but this liability, when it exists, does not rest upon the doctrine of respondeat superior, but solely upon the ground that in the particular case the coservant whose act or neglect caused the injury was, by the appointment of | the master, charged with the performance of duties which the master was bound to perform for the protection of his servants, a failure to perform which, or a negligent performance of which, by a servant delegated to perform them, is regarded in law as the master's failure or neg ligence, and not merely the failure or negligence of the coservant. The liability of the master when the negligence was not his personal act or omission, but the immediate act or omission of a servant, turns, as was said in Crispin v. Babbitt, 81 N. Y. 521, upon the character of the act; and this was but the enunciation of the established doctrine in this State upon the subject. If the coservant whose act caused the injury was at the time representing the master in doing the master's duty, the master is liable; if on the other hand he was simply performing the work of a servant, in his character as a servant or employee merely, the master is not liable. The injury in the case last supposed, would, as between the master and the servant sustaining the injury, be attributable solely to the immediate author, and not to the master. In harmony with the general principle that the character of the act is the decisive test, it has been repeatedly decided in this court that the fact that the person whose negligence caused the injury was a servant of a higher grade than the servant injured, or that the latter was subject to the direction or control of the former, and was engaged at the time in executing the orders of the former, does not take the case out of the operation of the general rule, nor make the master liable. Hofnagle v. N. Y. Cent, etc. R. R. Co. 55 N. Y. 608; McCosker v. Long Island R. R. Co. 84 N. Y. 77; Allen, J., in Wright v. N. Y. C. R. R. Co. 25 N. Y. 565; Folger, J., in Laning v. N. Y. C. R. R. Co. 49 N.,Y. 528. These decisions are decisive against the claim of liability on the part of the State, for the injury sustained by the claimant. It is found that it resulted from the negligence of Wells, the captain of the state boat, who at the time was engaged with several hands employed on the boat (including the claimant), in digging clay from a bank, and loading it on to the boat. The negligence consisted in setting the claimant to work under the bank, after Wells had loosened the overhanging earth so that it fell upon and injured the plaintiff. The case is within the decisions above cited. Wells, although captain of the boat, with power to direct those under him, was nevertheless a coservant within the rule. The manner of proceeding with the work was committed to Wells. It involved the exercise of such discretion and judgment only as is committed to a foreman. It is not claimed that Wells was incompetent for his position; and no question as to the suitableness of appliances furnished by the State arises. It is the ordinary case of mismanagement by a coemployee of superior grade, as to the manner of prosecuting an ordinary work in which he and other employees acting under him were at the time engaged. This was a risk incident to the employment, which the claimant assumed, and the injury not being one for which the master, if an individual, would be liable, it is not therefore one for which the State is liable under chapter 321 of the Laws of 1870. The case of Chicago etc. R. R. Co. v. Ross, 112| U. S. 377 [Bk. 28, L. ed. 787], cited in the opinion below, was decided by a bare majority of the court, and is in conflict with the course of decisions in this State and elsewhere. Slater v. Jewett, 85 N. Y. 61; Wilson v. Merry, L. R. 1 H. L. Scotch App. 326; Farwell v. Boston etc. R. R. Corp. 4 Met.49. The award should be reversed, and the case remitted to the Board of Claims for a rehearing. All concur. Kathleen HICKEY, Respt., v. John P. TAAFFE, Appt. 1. It is the master's duty to furnish ma- 2. An employee, in accepting service with caution. 4. Merely going through the form of giving instructions, by the employer, even if such form includes everything requisite to the proper discharge of his duties by the employee, is not sufficient. 5. If a person is so young that even after full instructions he wholly fails to understand them and does not appreciate the danger arising from a want of care, then he is too young for such employment, and the employer puts or keeps him at such work at his risk. 6. If an employee of immature years (here a female of fourteen years) has had no instructions as to the danger of a machine at which she is set at work, and never worked at any machinery before, and is injured by such machine within a short time of her employment, because of her unfamiliarity with and lack of appreciation of the dangers attendant upon the working of the machine, the employer will be liable. eral rule of law upon the subject of 8. Where the injury to the employee oc- APPEAL from a judgment of the Supreme Reversed. The facts and questions raised appear from the opinion. Mr. Esek Cowen, for appellant: occurred where the finger of an operator, on one It does not appear that a case had ever before of these machines, has been caught in a collar or cuff; and in several cases this court has held that such want of previous experience was conclusive as to the absence of negligence in the defendant. Dougan v. Champlain Trans. Co. 56 N. Y. 1; Sutton v. N. Y. Cent. etc. R. R. Co. 66 N. Y. 243; De Graff v. N. Y. Cent, etc. R. R. Co. 76 N. Y. 131; Burke v. Witherbee, 98 N. Y. 562. Mr. Patrick Keady, for respondent: Defendant was guilty of gross negligence in putting plaintiff, a fourteen year old child, without a word of warning, caution or advice, to work at a machine which was dangerous and unsafe, was out of order and had no proper means of stopping or starting it at the time of the injury. 1 Add. Torts, Wood's ed. note p. 607; Corcoran v. Holbrook, 59 N. Y. 517; Coombs v. New Crown Point Iron Co. 2 Cent. Rep. 409, 101 N. Bedford Cordage Co. 102 Mass. 585; Larmore v. y. 391; Whart. Neg. § 222; Fuller v. Jewett, 80 N. Y. 46; Beach, Cont. Neg. 350, 352; Painton v. Northern Cent. R. Co. 83 N. Y. 7. employment by taking plaintiff from "bunch- Y. 547: Wood, Master & S. § 17, p. 25. instruct this infant plaintiff as to the dangerous nerty v. Prentice, 75 N. Y. 615; Grizzie v. 7. But where such employee has ac- It was the duty of defendant to furnish safe, sound and suitable tools, implements, appliances and machinery for the use of the plaintiff. If he failed to do this, he was guilty of neg Benzing v. Steinway, 2 Cent. Rep. 491, 101 N. Y. 547; Laning v. N. Y. Cent, etc. R. R. Co. 49 N. Y. 521; Corcoran v. Holbrook, 59 N. Y. 517; Slater v. Jewett, 85 N. Y. 61; Pantzar v. Tilly Foster Mining Co. 99 N. Y. 368; Larmore v. Crown Point Iron Co. 2 Cent. Rep. 409, 101 N. Y. 391, 394; Kain v. Smith, 80 N. Y. 468. There was no negligence on the part of plaintiff, which contributed to the injury. The law does not expect or require the same maturity of judgment or the same degree of care in a child of tender years as in an adult. Byrne v. N. Y. Cent. etc. R. R. Co. 83 N. Y. 620; Thurber v. Harlem Bridge M. & F. R. R. Co. 60 N. Y. 326; Barry v. N. Y. Cent. etc. R. R. Co. 92 N. Y. 289; Reynolds v. N. Y. Cent. etc. R. R. Co. 58 N. Y. 248, 252; O'Mara v. Hudson River R. R. Co. 38 N. Y. 445; Mowrey v. Central City R. Co. 51 N. Y. 666; Shearm. & Redf. Neg. 59; Crispin v. Babbitt, 81 N. Y. 516; Voak v. Northern Cent. R. Co. 75 N. Y. 320. The forewoman who put plaintiff to work at the machine, was not a fellow servant, but had power to employ and discharge the operatives. She stood in the place of the defendant, the master. Brick v. Rochester etc. R. R. Co. 98 N. Y. 211; Crispin v. Babbitt, 81 N. Y. 516; McCosker v. Long Island R. R. Co. 84 N. Y. 77; Gunter v. Graniteville Mfg. Co. 18; S. C. 44 Am. Rep. 578; Benzing v. Steinway, 2 Cent. Rep. 491, 101 N. Y. 547; Ellis v. N. Y. L. E. & W. R. R. Co. 95 N. Y. 546; Slater v. Jewett, 85 N. Y. 61; Corcoran v. Holbrook, 59 N. Y. 517. Where the master or his representative directs the doing of an act, the servant is not, in a legal sense, liable for negligence for the injury resulting from obedience. Benzing v. Steinway, supra; Gibson v. Erie R. Co. 63 N. Y. 449; Kain v. Smith, 25 Hun, 148; Miller v. Union Pac. R. Co. 12 Fed. Rep. 600; Bucher v. N. Y. Cent, etc. R. R. Co. 98 N. Y. 128; Salter v. Utica & Black River R. R. Co. 88 N. Y. 49; Morrison v. Erie R. Co. 56 N. Y. 302; Filer v. N. Y. Cent. R. R. Co. 49 N. Y. 52; Stringham v. Stewart, 1 Cent. Rep. 779, 100 N. Y. 516. The motions for a nonsuit were properly denied. There were controverted questions of fact which were properly submitted to the jury to decide. Probst v. Delamater, 1 Cent. Rep. 507, 100 N. Y. 266: Stackus v. N. Y. Cent. etc. R. R. Co. 79 N. Y. 464; Thurber v. Harlem Bridge etc. R. R. Co. 60 N. Y. 327, 331; Barry v. N. Y. Cent. etc. R. R. Co. 92 N. Y. 289; McGovern v. N. Y. Cent, etc. R. R. Co. 67 N. Y. 417; Byrne v. N. Y. Cent, etc. R. R. Co. 83 N. Y. 620; Hays v. Miller, 70 N. Y. 112; Maher v. Cent. Park etc. R. R. Co. 67 N. Y. 52. Plaintiff may recover at common law, independent of any right of action given her by statute. Hickey v. Taaffe, 99 N. Y. 204. This court is not at liberty to review the questions of fact presented by the evidence upon the trial; and the verdict of the jury is conclusive in regard to them. Hallahan v. N. Y. etc. R. R. Co. 2 Cent. Rep. 924, 102 N. Y. 194, 199; Kenney v. Cohoes, 22 Week. Dig. 370. Peckham, J., delivered the opinion of the court: The plaintiff was a young girl employed by defendant in his laundry. At the time of her first coming there in April, 1882, she was fourteen years and four months old, and was em ployed by the sister of defendant, who superintended the department of the work, to "bunch" collars and cuffs which was a perfectly safe employment. Before going to the laundry she had never worked nor seen machinery used in a steam laundry. She remained at this employment until June 16 of the same year, when defendant's sister came to her (as she says) and after telling her that the person who fed the machine in question was absent asked her to go over to it and take her place, which she did; and she was there shown how to put the collars and cuffs through and was told to be careful and not let any laps go through, any ears that is, so that no part of the collars should lap over another part. This machine had a platform in front of it, upon which the feeder sat in a chair and placed the collars and cuffs which were to be put through the ironing process on a flat desk in front of her. There were two rollers at the further edge of the desk, one on top of the other; the lower one was hot enough to iron the collars as they passed through, while the upper pressed down upon it with a pressure of about 200 pounds. The collars were fed to these rollers by the feeder, and as one collar was started in on the left side of the machine and "gripped" by the rollers another was placed in position by the side of it; and so on until the sixth would just be taken by the rollers as the first one disappeared and the space left vacant for another collar. There was a belt by which the machine was operated, which however could not be reached by the person feeding; but there was a girl at the rear or other end of the machine where the collars came out who started and stopped it. The heated roller is hollow and revolves around gas jets, and is heated to such a heat that if a collar stopped on it for a minute it would have been scorched brown or burned. If a person's hand were caught between these rollers it could not be dragged out, and the machine would have to be stopped and the weights which pressed it down would have to be removed from the upper roller. This machine would iron about 600 dozen pieces in the course of a working day. There were no guards in front of the rollers for the purpose of preventing anything from being drawn between them. The defendant, on his examination, said that at one time he had himself placed a lever or shifter on this machine by which to start and stop it; it was overhead on the ceiling, and it could not be reached from where the plaintiff sat, but could be handled by a cord. That lever had been off about two months at the time when the accident occurred for which this action is brought. Defendant says he found that the lever was not convenient, and that the old way was the easiest and safest. He says he did not take it off as a matter of economy, because the girls used to take too much time in stopping that lever. There never was at any time a lever or shifter within reach of the platform where the feeder sat. The machine as it existed on the day of the accident was in perfect repair and condition, according to the plan upon which it was built; and it did not appear from the evidence that there was in use any machine moved by steam for ironing collars which had any other or better or safer means for stopping it or for guarding the person who fed it. On the 16th of June, when plaintiff went to work at this machine, she had never used any of the machines in the laundry. She says that no one in the factory ever instructed her as to the dangers of this machine; neither defendant nor any body else ever gave her any such instructions Before the plaintiff, no operator or feeder of the machine had ever been hurt, although there were several such machines in the laundry and they had been in use several years. One person had been injured, but she was not an operator and had no proper business at the machine when in operation. plaintiff's hand was then taken out, the upper roller having been raised, and she was taken home. She was most terribly burned and bruised, and suffered an injury of a permanent nature and which may result in the entire loss of her hand, and perhaps arm up to the elbow. The plaintiff commenced this action to recover for the injury, and in her complaint alleged that the defendant "carelessly and unlawfully set the plaintiff to work on machinery which was dangerous to her life and limb, without informing her of such danger, and of which she was entirely ignorant, *** and that defendant well knew that said machinery was dangerous and unsafe; that through the gross negligence, carelessness, and wrong doing of the defendant, *** and without any negligence on the part of plaintiff, plaintiff's right hand was caught in defendant's machinery," etc. The plaintiff had a verdict which was affirmed at the general term, and the defendant appealed to this court. contributory negligence in the case. The right of the plaintiff to maintain this recovery was placed by her counsel upon three grounds: 1, the duty of defendant to furnish safe, sound and suitable tools and machinery for the use of the plaintiff; 2, the negligence of defendant in failing to warn the plaintiff of the character of the machine and its dangers from lack of proper appliances to stop it by the person feeding it; 3, the defendant's violation of the original contract of employment, by taking her from "bunching" the collars and placing her at work feeding this dangerous machine. For six weeks, or from June 16 to July 26, the day she was injured, the plaintiff worked The counsel for defendant upon the argument constantly on the machine in feeding the collars here, very properly, as we think from the testiand cuffs. During this time she says defend-mony, conceded that there was no question of ant had talked to her about her hair being loose or too long, and he told her to keep her hair up in front because it might get caught in the roller and be burned off. She also said she knew the rollers were so close together that they would, if they caught the hair, either draw it out of her forehead or burn it off by the heat, | and she knew that this did once occur. She got her own hair caught once, four or five days after she was first employed on it, and she knew then that the rollers were hot enough to iron a collar, and she had always been told that there was a pressure of the upper roller on the lower. She also said she knew that if her hand was caught between the rollers of that machine that it would be burned and crushed, and she knew that other girls had had their hair caught and burned off on the machine. As to the weight of the pressure of the upper roller upon the lower, she knew it was pressed upon or weighted with weights which she saw; and she saw the upper roller raised by means of a lever which was operated by stooping down and making great pressure with the body of the lever, which would then raise the roller. For six weeks she had had the experience of working at and feeding this machine, and had obtained the knowledge above stated, when on the 26th of July the accident in question happened. She gives this account of the manner of its happening: "I commenced on the left hand side and commenced to put it (the collar) through the machine. I caught a collar with an ear on it. I put my finger out to pull it out and my hand was caught and drawn right through; the way it got caught, it was an old collar; my finger got caught in the buttonhole and I could not get it out; the machine went quite fast; there was a lap in the ear of a stand up collar, gentleman's collar; the buttonhole part was lapped back on the collar. I put my finger out to pull it out and my hand was caught and drawn right through; I tried to get it out; I put out my foot to push off the belting and could not reach it." The girl at the other end of the machine heard the cries and stopped the machine. The First. The duty to furnish safe machinery means of course machinery that is safe, considering the use for which it is designed; for otherwise very little machinery could be operated. A steam engine may be built in the best manner, of the best materials, etc., and yet there is the possible danger inherent in the nature of the machine itself as operated by such an element, which may lead to an explosion that could not be foreseen or guarded against. Nor does the duty of furnishing a safe machine oblige an employer to furnish the best possible appliances. His duty is discharged when he furnishes a machine which is reasonably safe and suitable. Burke v. Witherbee, 98 N. Y. 562. We are of opinion that the defendant in this case fully complied with all his legal obligations in this behalf. The machine that he furnished was in perfect repair at the time of the accident. There was but one way to stop it, and that was by taking the belt off at a point in the rear of the rollers in front of which the plaintiff sat. The machine was built on that plan, and was one of a large number of the same kind, and used for the same purpose. There was no evidence that a machine for this purpose had ever been built which could be stopped in any other manner. The defendant, it is true, some time before the plaintiff came to the machine to work it, had himself provided other and additional means of stopping the machine; but as he says in his testimony, which upon this point is wholly uncontradicted, it was found not to work as well as the old way, and these additional | a want of care, then he is too young for such means had been removed before the plaintiff employment, and the employer puts or keeps was placed as a feeder at the machine. But him at such work at his own risk. even if the means had remained, the plaintiff (after her hand was caught) could not have reached the lever to stop the action of the machinery. The defendant could remove these things, which he had placed upon the machine by way of experiment to test their usefulness and convenience, without being, under the circumstances of this case, guilty of any negligence. The same observations apply with added force to the fact that there were no guards in front of the rollers. The defendant had never himself placed any there, and none had been known to have been placed on any such machine in any other factory where used. Indeed, it could not be expected that such guards should be placed there; for it is plain that they would materially interfere with the working of the machine. But the plaintiff, in accepting this work and entering upon the employment about this machine, assumed the usual risks and perils of the employment, and such as were incident to the use of this machine in its then condition, so far as such risks were apparent. I speak of this as the general rule; and whatever exceptions there may be to it on account of the youth of the plaintiff will be spoken of hereafter. But upon the general proposition as to the use of machinery there is no doubt that an employee in accepting service with a knowledge of the character and position of the machinery, the dangers of which are apparent, and from which he might be liable to receive injury assumes the risks incident to the employment; and he cannot call upon the defendant to make alterations to secure greater safety. Gibson v. Erie R. Co. 63 N. Y. 449; Powers v. N. Y. etc. R. R. Co. 98 N. Y. 274; Shaw v. Sheldon, 5 Cent. Rep. 41, decided by this court, not yet reported in regular series. We see no failure of defendant to comply with his legal obligations as to the first ground of liability maintained by plaintiff's counsel. Assuming the plaintiff's statement in this case to be true: that she had no instructions as to the danger of the machine and that she had never worked at any machinery before, if under such circumstances this accident had happened within a short time of her employment and because of her unfamiliarity with and lack of appreciation of the dangers attendant upon the working of the machine, the defendant may well have been liable for the damages sustained by her on account of such ignorance. But the case discloses wholly different facts; it is conclusively shown from her own evidence already quoted that she was aware of and fully appreciated and understood the dangers to be apprehended from working the machine; and it is equally clear and from the same source of information, that she was perfectly competent to discharge this duty of feeding the machine, long before the accident occurred. She had not, it is true, received any instructions as to its dangers from the defendant or his agents as she says; but she had acquired the information in fact from the best of all teachers, that of practical experience. She knew, therefore, all that the instructions of the defendant would have imparted to her. This was enough. Being of an age to appreciate and having full knowledge of the danger, and at the same time being competent to perform the duty demanded from her, the fact that she was a minor does not alter the general rule of law upon the subject of employees taking upon themselves the risks which are patent and incident to the employment. DeGraff v. N. Y. Cent. etc. R. R. Co. 76 N. Y. 125; Coombs v. New Bedford Cordage Co. 102 Mass. 572, 585; Sullivan v. Indian Mfg. Co. 113 Mass. 396-398; King v. Boston & M. R. R. Co. 9 Cush. 112. The learned judge in delivering the opinion at general term, while stating that the case was a border one, observed that "It may well be that there were methods of performing the duties which, if duly communicated to the plaintiff, would have avoided the risks of accident.' But the plaintiff in her own evidence says she was instructed as to the methods of performing the duties which she was placed there to discharge; it is only as to the dangers to be apprehended from the machine which she says were never imparted to her. There seems to be still another answer to this part of the plaintiff's claim; and that is the injury did not occur on account of any act done or omitted on her part because of any want of knowledge or appreciation of the dangers of the machine. 2. As to the second. There is no doubt that in putting a person of immature years at work upon machinery which in some aspect may be termed dangerous, an employer is bound to give the employee such instructions as will cause him to fully understand and appreciate the difficulties and dangers of his position, and the necessity there is for the exercise of care and caution. Merely going through the form of giving instructions, even if such form include everything requisite to a proper discharge of his duties by such employee, if understood, would not be sufficient. In placing a person of this description at work upon dangerous ma- She attempted to straighten out a "lap" in a chinery, such person must understand in fact collar, the further end of which was caught by its dangerous character and be able to appreci- the machine. Her hand was distant from the ate such dangers and the consequences of a want roller, the whole length of the collar; and but of care, before the master will have discharged for the unfortunate and not to be foreseen accihis whole duty to such an employee. Sullivan dent by which her finger was caught in the butv. India Mfg. Co. 113 Mass. 396–399; Finnerty ton hole and from which she could not extricate v. Prentice, 75 N. Y. 615 manuscript opinion it in time, the plaintiff's hand would not have by Andrews, J., where such rule is recognized as existing in this State. If a person is so young that even after full instructions he wholly fails to understand them and does not appreciate the danger arising from been caught by the rollers. In the act of trying to straighten out this "lap" at the time she did, it is impossible to hold that such act was the least evidence of a lack of appreciation of or a familiarity with the dangers of the machine; |