179 A.D. 825 | N.Y. App. Div. | 1917
Lead Opinion
The court agrees that unless there was error in refusing a request to charge, the judgment should survive this appeal. The jury could find that an employer, engaged in altering a ship on May 29, 1914, furnished his employee with an unsafe scaffold. The defendant employer’s counsel made this request of the court: “ I ask your Honor to charge that the law which imposes upon an employer the duty of seeing that the scaffold is proper, does not take away the defense of the assumption of risk, if the jury believe that the plaintiff knew the condition of the scaffold and could readily have fixed it himself, if he believed it necessary, they may hold he assumed the risk, and return their- verdict for the defendant.” It is conceded that where a statute affirmatively imposes upon an employer a specific duty in express terms, the risk occasioned by the failure of the employer to comply with the statute is not assumed by the employee although he has knowledge of the failure. (Fitzwater v. Warren, 206 N. Y. 355; Welch v. Waterbury Co., Id. 522; 159 App. Div. 509; affd., 217 N. Y. 604.)
The argument that the plaintiff assumed the risk in this case is based upon an over-subtle distinction. It is the supposed difference between the affirmative duty to guard
I advise affirmance of the judgment and orders, with costs.
Thomas, Mills and Blackmar, JJ., concurred; Putnam, J., read for reversal.
Dissenting Opinion
I dissent and vote to reverse for error in the charge that plaintiff assumes only those risks incident to his employment remaining after the employer has performed the duty imposed upon him. That the employee may assume obvious risks in a scaffold, which is a question of fact, was held in Gombert v. McKay (201 N. Y. 27), a principle declared to be still applicable in common-law actions in New York. (Wiley v. Solvay Process Co., 215 N. Y. 584, in which Gombert v. McKay is cited with approval.)
Judgment and orders affirmed, with costs.