104 N.Y.S. 349 | N.Y. App. Term. | 1907
Plaintiff, a young man of about eighteen years of age, was working on a machine in defendant’s employment, and was injured. He sued the defendant for damages, and obtained a judgment in his favor. Defendant appeals. Defendant’s foreman put plaintiff to work on the machine. After he had worked on it about three weeks he told the foreman it was out of order; that it shook too much. The foreman told him not to mind about that, but to go on with his work. The plaintiff again spoke to the foreman, and requested him to have the machine fixed. The foreman said he would have it fixed in a couple of days, and told plaintiff to continue to use the machine. He worked about two hours longer on this machine when “ it jumped ” or “ wabbled,” and injured plaintiff. Under the Employers’ Liability Act, the assumption of risk by continuing in a dangerous position is a question of fact. The justice found, upon some proof, that plaintiff was free from contributory negligence in the management of the machine. The promise of the foreman to repair the machine, made to plaintiff to induce him to continue work thereon, constituted a contract on the part of the employer to assume the risk, and relieved the servant therefrom. Citrone v. O’Rourke Construction Co., 113 App. Div. 518. This contract commenced at the time of the promise, and continued during the period of the agreement, and was in force at the time of the accident.
The judgment should be affirmed, with costs.
Present: Gildersleeve, Seabury and Brady, JJ.
Judgment affirmed, with costs.
