140 N.Y. 450 | NY | 1893
The relation of master and servant existed between the plaintiff and the defendants at the time that the former received the personal injury for which he has recovered damages. The question presented is whether, upon any view of the evidence, the result can be attributed to any fault or neglect on the part of the master. The rules of law in such cases are well settled, but it is not always easy to apply them to the varying facts in each particular case. The master does not insure the servant against all accidents and mishaps that may befall him in the business. The servant, when he enters into the relation, assumes not only all the risks incident to such employment, but all dangers which are obvious and apparent. The law imposes upon him the duty of self-protection and always assumes that this instinct, so deeply rooted in human nature, will guard him against all risks and dangers incident to the employment or arising in the course of the business of which he has knowledge or the means of knowledge. If he voluntarily enters into or continues in the service without objection or complaint, having knowledge or the means of knowing the dangers involved, he is deemed to assume the risk and to waive any claim for damages against the master in case of personal injury to him. (Thompson on Neg. p. 1008; Haskin v.N.Y.C. H.R.R.R. Co., 65 Barb. 129; affd.,
This principle applies to the plaintiff, though he was not at the time of full age. Like any other servant he took upon *453
himself the ordinary risks of the service, and all dangers from the use of machinery which were known to him, or obvious to persons of ordinary intelligence. (De Graffe v. N.Y.C. H.R.R.R. Co.,
The liability of the master for injuries to the servant received in the service is based upon his personal negligence, and the evidence must establish some personal fault or neglect of duty on his part, or what is equivalent thereto, in order to justify a verdict, and he is entitled to the presumption that he has performed this duty until the contrary is made to appear. (Wood on Master Servant, §§ 345, 346; Cahill v. Hilton,
This is a clear exposition of the law applicable to such questions, but we think its application to the proofs in this case called for a non-suit or the direction of a verdict for the defendants. There is no conflict in the evidence as to the particular duties which the plaintiff was hired to perform. They consisted, as already stated, in removing the dressed boards from the machine as they came through, and occasionally sweeping the floor. It is admitted that proper instructions were given to him to enable him to perform this work with safety, and if it be true, as the plaintiff testifies, that on the occasion in question he was directed to perform another, and specially dangerous service, without sufficient instruction, the fault was not that of the master, but of a co-servant. So that whether we consider the order to hang the hood as an incident of the employment the risks of which the plaintiff assumed, or a direction to do a reckless or dangerous thing without sufficient knowledge or instruction, the dangers of which were plain and obvious, or a request by the foreman to do something that by the employment he was not bound to do, the result is the same. The plaintiff was, no doubt, very seriously injured, and his case was one which appealed to the sympathy of the jury although the testimony preponderated strongly in favor of the conclusion that the injury was the result of some carelessness or inattention on his own part. But it would be manifestly unjust to subject the master to damages in such a case where, under the most favorable view that can be taken of the evidence in favor of the plaintiff, the injury was the result of an accident which could not have been anticipated or prevented by the exercise of ordinary care, and which occurred without the fault of the master.
The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed. *457