90 N.Y.S. 887 | N.Y. App. Div. | 1904
(dissenting). The plaintiff in this action was an employé of the defendant, and was injured on the 4th day of April,
The principal question to be decided upon this appeal is raised by the motion of the defendant at the close of plaintiff’s case, and renewed at the close of the evidence, to dismiss the complaint upon the ground that the evidence disclosed that the plaintiff assumed the risk of injury; that the defendant had provided a reasonably safe passageway for its employés; and that no negligence had been proven against the defendant; and on the ground that it appeared that there was another exit, and that the plaintiff did not have to go out this way. The proposition urged particularly is that this was a case where the plaintiff, by continuing the employment with full knowledge of the method of conducting business on the part of the defendant, assumed the risks of the employment. The plaintiff, while apparently conceding the rule of law relating to the assumption of those risks which are known and obvious, suggests that the “question of plaintiff’s assumption of the risk is not raised by the pleadings. Defendant’s answer does not allege it as a defense or in any other way. Hence it cannot avail the defendant. The burden of proving that plaintiff assumed the risk, if that question is properly raised by the pleadings, is upon the defendant.” This view of the case finds some sanction in Dowd v. N. Y., O. & W. Ry. Co., 170 N. Y. 459, 469, 472, 63 N. E. 541, but I am persuaded that the learned jurist writing in that case did not intend to deal with the question of practice, and that the language is a mere inadvertence, and this because both before and since the decision in the Dowd Case the courts have passed upon the question of assumed risks as a matter of law from the facts
But aside from these reasons for reversing the judgment, I am persuaded that the plaintiff, who knew all of the facts and circumstances, had impliedly contracted to waive any carelessness on the part of the defendant in respect to the piling of these scraps in the passageway, and that the defendant, under such circumstances, is not liable as a matter of law, this defense being open without being pleaded, as it flows as a matter of course from the facts established upon the trial by either party, and this is evident from the Dowd Case, supra, for it is said (page 469, 170 N. Y., page 5-43, 63 N. E.): “The doctrine of assumed risks rests upon the implication of a promise by the employé to waive the conse
There is no suggestion that the master ever promised to make any changes, or that the plaintiff had ever complained of the danger; so that the recent case of Rice v. Eureka Paper Co., 174 N. Y. 385, 66 N. E. 979, 62 L. R. A. 611, 95 Am. St. Rep. 585, noting an exception to the general rule, has no bearing. A careful examination of the authorities convinces me that the defendant in the case at bar has not neglected any duty which it owed to the plaintiff, under the latter’s own version of the facts. He knew all that the master knew—all that it was the duty of the master to know—about the method of getting out of the factory. He remained in the employ of the defendant without protest, with the facts all before him; and, having acquiesced in the conditions of the employment, the master did not owe him the duty of personally inspecting the passageway; certainly not where it was not shown that the immediate cause of the accident had been present long enough to give notice to a reasonably prudent man that danger was to be anticipated.
The judgment and order appealed from should be reversed, and a new trial gi anted.