for centuries to come. Even now the parties are contending as to the meaning of the judgment which has been rendered in the trial court, the respondent being at odds with the learned judge who wrote for the majority of the Appellate Division. The respondent contends that the rights of the Indian will not survive a dissolution of the nation or tribal existence, while the learned judge of the Appellate Division is of opinion that the rights continue as long as the lands are actually occupied by Indians of the tribe, whether the tribe as an entity continues to exist or not. This question had much better be left till the nation or tribe becomes disintegrated, when the courts of that day will, doubtless, be competent to deal with it, as well as with the whole question of what rights, if any, the defendant or his successors in interest have in the lands comprised in these reservations. We have not examined the claim of the defendant to be the successor in interest of the right acquired by the state of Massachusetts under its treaty with this state, as we have disposed of the case on a broader ground.

The judgments of the Trial Term and Appellate Division should be reversed and complaint dismissed, without costs to either party in any court.

GRAY, VANN, Werner, Willard BARTLETT, HISCOCK and CHASE, JJ., Concur.

Judgments reversed, etc.

WILLIAM WYNKOOP, Respondent, v. THE LUDLOW VALVE MANUFACTURING COMPANY, Appellant.

Labor Law construction of provision requiring that "machinery of every description," in factories, should be guarded — accident from a necessary and obvious danger.

The purpose of the Labor Law, in directing that certain appliances therein named and “machinery of every description," in factories, should be guarded, is to protect employees from unnecessary and hidden dangers. Where, however, danger to employees does not exist or is not to be reasonably expected it is not necessary, under the statute, for employers to guard even the machines or appliances enumerated therein.

A rail, or track, upon which run the wheels of a truck carrying a traveling crane, was elevated two and a half to three feet above the floor of a gallery, running around a factory, upon which gallery lathes and other machines were situated, and so placed that employees were not required to work upon it or about it. Plaintiff, while looking for a tool, with which to carry on his work, fell and in falling put his hand upon the track just as the wheel of the crane truck was passing, so that his fingers were cut off by the wheel. The rail was not guarded and there is no evidence to show that it was practical to guard it or that such a track is now or ever has been guarded in any similar or other factory. There was no defect in the floor of the room to precipitate an accident. Hell, that the remote possibility of one falling and, in falling, of putting his hand upon the rail in front of the wheel of the approaching truck was one of those necessary and obvious dangers not commonly guarded against, and which should not be held to be within a general statute for the " protection of employees operating machinery."

Wynkoop v. Ludlow Valve Mfg. Co., 126 App. Div. 939, reversed.

(Argued October 14, 1909; decided November 9, 1909.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 20, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

Murray Downs for appellant. There is no proof that the defendant failed in any respect in its duty or care, either at common law or under the Employers' Liability Act. (G. F. P C. Co. v. T. Ins. Co., 162 N. Y. 403; Egan v. N. J. S. Co., 86 Hun, 542; 154 N. Y. 777; Russell v. N. J. S. Co., 10 Misc. Rep. 593; Bristor v. Smith, 158 N. Y. 157; Bauer v. E. S. D. Co., 115 App. Div. 71; 191 N. Y. 547; Nolan v. M. S. Ry. Co., 65 App. Div. 184; 173 N. Y. 604; Knisley v. Pratt, 148 N. Y. 372; Stevens v. Gair, 109 App. Div. 621; Buckley v. G. P. & R. M. Co., 113 N. Y. 540; Welsh v. N. Y. C. & II. R. R. R. Co., 43 N. Y. S. R. 958; Riceman v. Havermeyer, 84 N. Y. 647; McGuigan v. D., L. & W. R. R. Co., 122 N. Y. 618.)

Opinion of the Court, per CHASE, J.

[Vol. 196.

J. W. Atkinson for respondent. The defendant was negligent in not properly guarding the track or rail upon which the electric crane was operated. (L. 1897, ch. 415; L. 1899, ch. 192; G. F. P. C. Co. v. T. Ins. Co., 162 N. Y. 403; Johansen v. Eastman Co., 44 App. Div. 270; Diamond v. P. M. Mfg. Co., 97 App. Div. 43; Johnson v. O. P. Co., 112 App. Div. 667.) The electric crane was a part of the ways, works and machinery" within the meaning of the Employers' Liability Act. (L. 1892, ch. 600; Gunn v. N. Y., N. H. & H. R. R. Co., 171 Mass. 417.) The failure of the defendant to properly guard the rail upon which the electric crane was operated was a defect in the condition of the ways, works and machinery used in the business of the defendant. (Tate v. Latham, L. R. [1 Q. B.] 502; Wallace v. C. P. M. Co., 19 Scotch Sess. Cas. [4th series] 915; Morgan v. Hutchins, 59 L. J. Q. B. [N. S.] 197; Godwin v. Newcombe, 1 Ont. L. R. 525.)

CHASE, J. The plaintiff's fingers on his left hand were cut off by one of the wheels of the truck of a traveling crane in the defendant's factory. In the defendant's factory is a gallery about twenty feet above the ground floor which extends around three sides thereof. There is a space between the side galleries of about forty feet. Along the inner side of each side gallery there are timbers twelve inches square extending the whole length thereof which are situated from two and a half to three feet above the floor of the gallery. On the center of these timbers are fastened rails like the heavy rails used for steam railroad tracks. The defendant maintains a crane for lifting and moving heavy weights in the lower part of the building, which is carried upon a truck extending across the space between the galleries and the wheels of said truck run upon said tracks. The machinery used by the defendant's employees faces the outside of the building. On the west gallery there is a long lathe near the center of the building, the back of which is about three feet from the timbers on which the rails are fastened, and near the

N. Y. Rep.]

Opinion of the Court, per CHASE, J.

end of such lathe attached to a post, which is also west of the timbers but partly east of the lathe, is a drill press with which the plaintiff was about to work on the morning of the accident. In the space surrounded by the lathe on the west, a cupboard on the north, the drill press on the south and said timbers on the east, being a space about 3 x 12 feet, are kept certain form boxes and other things used in connection with the work conducted on said gallery. The plaintiff's work that morning was to drill certain brass valves with said drill press, and it was necessary for him in doing so to have one of the boxes or forms in which to hold such valves while they were being drilled, and he went to the space or room in which the boxes were stored and looked over about one hundred of them in an effort to find a form to fit the particular valves on which he was to work. As he returned through this small room assorting the boxes and continuing his effort to find a form, he thought he saw one that could be used by him and as he reached for it, he, in some way which does not appear, slipped or tripped, and as he did so he put out his hand upon the top of the rail just as a wheel of the crane truck was passing and his fingers were injured as stated.

The plaintiff had been employed in a machine shop for many years and he was entirely familiar with the situation of the track and the use of the truck. The only question which is now before us for consideration is as to the alleged negligence of the defendant under all the circumstances in not guarding the rail. It is claimed by the plaintiff that the defendant failed to obey the Labor Law (L. 1901, ch. 9, section 81) which requires that "all vats, pans, saws, planers, cogs, gearing, belting, shafting, set screws and machinery, of every description, shall be properly guarded."

There is no testimony in the record to show that it was practical to guard the rail, or that such a rail is now or ever has been guarded in any similar or other factory. The wheels of such truck were from fifteen to eighteen inches in diameter and the structure of the truck extended above the wheels so that it was not possible to guard the track by a covering and

Opinion of the Court, per CHASE, J.

[Vol. 196.

continue its use. It is not suggested, and it does not appear how the track could have been guarded except perhaps by the construction of a fence or partition at a point so far inside of the rail that it would not interfere with the truck and at such a height as to prevent a person intentionally or by acci. dent falling over it upon the track.

The danger arising from unguarded vats, pans, saws, planers, cogs, gearing, belting, shafting and set screws is more or less hidden and consequently when unguarded they constitute special and unnecessary exposure to injury. The intention. of the legislature in directing that certain things should be guarded, was thereby to remove all unnecessary danger to persons employed upon or about such special dangers. Other mechanical appliances constituting similar hazards were doubtless included in the words "machinery of every description." Where, however, danger to employees does not exist or is not reasonably to be expected it is not necessary under the act quoted for employers to guard even the enumerated machines or appliances. (Dillon v. National Coal Tar Co., 181 N. Y. 215; Glens Falls P. C. Co. v. Travelers' Ins. Co., 162 N. Y. 399; Scialo v. Steffens, 105 App. Div. 592.)

This court, in Glens Falls P. C. Co. v. Travelers' Ins. Co., said: "We think, however, that the legislature could not have intended that every piece of machinery in a large building should be covered or guarded. This would be impracticable. What evidently was intended was that those parts of the machinery which were dangerous to the servants whose duty required them to work in its immediate vicinity should be properly guarded, so as to minimize, as far as practicable, the dangers attending their labors. Human foresight is limited, and masters are not called upon to guard against every possible danger. They are required only to guard against such dangers as would occur to a reasonably prudent man as liable to happen." (p. 403.)

There is no inherent danger in a track upon which a car or truck is run. The danger of remaining on a track when a car of any kind is approaching is neither hidden nor obscure.