2 N.Y.S. 133 | N.Y. Sup. Ct. | 1888
The deceased, by entering upon this employment, assumed all the risks of it, except those attributable to his master’s negligence with which his own did not concur. Ho negligence is sought to be imputed to the deceased, except that inferable from the fact that he knew all about the mine, so far as its shape, situation, and the generally dangerous character of the “bad ground” were concerned. The north wall of the mine, in which this “bad ground” was, was nearly perpendicular, and about 200 feet high. The plaintiff contends that this wall could have been cut back upon a safe slope, and that the jury had a right to And the defendant guilty of negligence in its omission of this method of mining. We are not prepared to sanction this view. The deceased must, we think, be held to have assumed the risks incident to the mere fact that this wall was perpendicular, and not sloping. Most mining is done beneath the surface of the earth, and under overhanging roofs of rock or ore. It could hardly be left to the jury to And a defendant negligent because he had not opened his mine to the sunlight.
But assuming that the deceased took the risk of the perpendicular wall, filled, as it was, with “bad ground,” he did not, as the defendant urges, assume all risk of injury from pieces falling from the wall. He did not assume that risk which might arise from the lack of the defendant, as master, to exercise proper care and vigilance in inspecting the “bad ground, ” and in providing for the removal of such portions as such inspection would show to be about ready to fall, or in apparent danger of falling. The defendant cites, in support of his contention that the deceased took all the risks, without the exception stated above, the following cases: Gibson v. Railway Co., 63 N. Y. 449; De Forest v. Jewett, 88 N. Y. 264; Powers v. Railway Co., 98 N. Y. 274; Marsh v. Chickering, 101 N. Y. 396, 5 N. E. Rep. 56; Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. Rep. 286. We do not think they support his contention, but think they support the rule above announced. He also cites Eades v. Clark, 11 N. H. St. Rep. 725, in which the superior court state the rule as the defendant claims it. We do not concur. The defendant, in entering upon this employment, knew that it was dangerous because the wall was perpendicular, and because it was filled with bad ground. Despite all the care the master ought to take to protect him from danger, he knew he might, although this care should be taken, be killed. That was precisely the risk he assumed,—a risk inhering in the nature of his employment. But the added risks, resulting from his master’s neglect, did not necessarily inhere in his employment. They w'ere imported into it by his master’s neglect, and these his master was bound to protect him from. In Pantzar v. Mining Co., 99 N. Y 368, 2 N. E. Rep. 24, which was a mining case, the court points out the distinction between the risks incidental to the hazard of the employment and those which the care of the master should prevent. Benzing v. Steinway, 101 N. Y. 547, 5 N. E. Rep. 449; Gottlieb v. Railway Co., 100 N. Y. 462, 3 N. E. Rep. 344. The question, then, is whether the deceased came to his death from the risks which he voluntarily assumed, or from those which he had the right to expect his master would protect him against. If from the former cause, no recovery could be had. If from the latter, a recovery was permissible, unless the jury should find that his negligence contributed. But contributory negligence must have existed with respect to the latter agency of death, in order to defeat recovery upon that ground. All these questions were, upon the evidence as presented by the case, proper for the determination of the jury. There seems to be but little evidence tending to show any contributory negligence. The deceased .was intelligent, alert, and careful, and there
The defendant requested the court to charge “that, when plaintiff’s intestate entered the employment of defendant, he took all the risks incident to the business.” The Court: “Yes, with the qualification I have stated, that it was the duty of defendant to have a safe place for the man to do his work.” This should be construed with reference to the qualification which the court had stated in his charge—respecting the duty of the defendant to provide a safe place. The main portion of the charge consisted of an explanation of the duty of the defendant in this respect, and of the risks assumed by the deceased. The court laid down, as a general rule, that it was the duty of the defendant to furnish the deceased with a safe place to work,—reasonably safe, —to be determined from all the circumstances. If dangerous from its situation or materials, then the defendant should make inspection, and see that the wall was safe, and free from stone that would fall. That if the deceased knew the danger, and took the risk of it, plaintiff could not recover. In response to the final request of defendant, the court charged “that if the jury believe that the wall from which the rock fell and killed deceased had been carefully inspected within a reasonable time by a competent inspector, and had been adjudged by him to be in a safe condition, defendant is not liable.” Ho exception was taken by the defendant to the general charge of the court. "We do not think the remark of the court is open to the criticism that the jury were instructed to find for the plaintiff if they found the place where plaintiff worked was unsafe. The whole tenor of the charge was to the effect that the safety required was such as reasonable care and inspection would secure. The judgment should be affirmed, with costs.
Learned, P. J., and Ingalls, J., concur.
