41 N.Y.S. 633 | N.Y. App. Div. | 1896
Lead Opinion
he action is brought to recover for the damage sustained by the death of the plaintiff’s intestate. Evidence was offered by the plaintiff tending to show that the deceased was killed on the 18th day of February, 1893, by falling from the temporary roof of the building which the defendant was erecting, through a skylight in the roof. The plaintiff produced no witness who saw the accident; It appeared that the defendant had erected a temporary roof made of rough boards over the building that he was constructing; and in the middle of that roof, for the purpose of lighting the interior of the building, was placed an ordinary window sash for a skylight. On the 17th and 18th of February, 1893, there had been a heavy fall of snow, and on the morning of the eighteenth, some time before twelve o’clock, the plaintiff’s intestate with other men were sent upon the roof to shovel off the snow that had fallen there. The men continued at that work until dinner time. Just before dinner one of the men in the defendant’s employ hallooed to the men shoveling snow to look out, that there was a skylight there; the deceased was present with the witness when the warning was given, and the witness said that after that warning he saw the skylight covered with snow. Another man, who was also working on the roof before dinner, testified that he heard no such warning, but he worked' there only a short time, having been called to other work. After dinner it seems that; the plaintiff’s intestate returned to the roof to work with at least one other man, and subsequently fell through this skylight and was killed. It-was disputed , whether at the time of • the accident the skylight had been uncovered, but it was shown- that the roof had been only partly Uncovered; the men working-towards the skylight pushing the snow in front of them with pushers. No one that testified saw the plaintiff’s intestate fall'; and there is no evidence to show why it was that he walked into or fell through, the show on the skylight away from the place at which he was working. The plaintiff’s intéstate had been working about this place for about four months; and tire interior of- the building depended largely upon the skylight for light.
He was sent to clean the roof from snow. The very nature of this employment was notice to the deceased that all defects in the roof were covered up, and that to be safe he must proceed by uncovering the roof before' walking upon it. The roof itself was a temporary one, not- permanent, where a person sent to work upon it could assume that it was of such a character that all parts of it would be safe. The risks that a man assumed in working upon such a roof covered with snow, and the degree of care that he was bound to exercise in order to avoid injury, must be materially different from those in the case of a permanent structure which one would have no reason to assume was dangerous.
In the case of Crown v. Orr (140 N. Y. 452) the court say: “ The
A master is not liable because an injury occurs in consequence of the nature of the work or the position in which an employee must place himself to do it. This roof was not built for the purpose of catching snow, nor for the purpose of providing a promenade for the workmen employed on the building or others, but for the purpose of protecting the building, and this window sash was put in the roof to furnish light to the interior of the building during its construction. The roof had been upon the building for about a month, and the . deceased had been employed there about four months. The condition of the roof was apparent; the dangers incident to the employment, by working. upon it, were apparent; the fact that the snow covered all inequalities or openings in the roof was apparent; the temporary structure of the roof was apparent; and one accepting such an employment upon such a place to do such work necessarily assumed the risk of either falling from or through the roof while so engaged.
I do not think that there was any evidence from which an inference could be drawn that the deceased' was free from con- ' tributory negligence. As before stated, it is a little difficult to see how he managed to go upon this skylight and fall through. _ He was
I think, upon both grounds, first, that there is no evidence to show that the defendant neglected any duty which he owed the deceased, and, second, that there is no evidence to show that the deceased was free from contributory negligence, that the complaint should have been dismissed.
The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
Concurrence Opinion
I concur in the conclusion that this judgment must be reversed, but not for the reasons stated in the opinion of Mr. Justice Ingraham. There was sufficient to go to the jury on the subject of negligence of the defendant in failing to furnish a safe place for men to work who were sent up to remove snow from the temporary roof, and that was the specification of the negligence attributed to the defendant. The roof was put up over a hallway. It was erected in December, at a time of the year and in a season when heavy snow storms were to be expected. It was very slight, made of boards covered with a coat of pitch. A flat skylight, consisting of a frame with thin plates of ordinary window glass, was inserted in the roof to afford light to stone masons in the hall below. Ho guard rail or barrier was put around that skylight, and it was left entirely unprotected. Its upper surface was but a few inches above the level of the roof, and under a heavy fall of snow lying evenly on the roof the skylight might (and did) become entirely concealed. As an independent issue in the case, these facts were sufficient to show negligence; the time of year, the necessity for removing snow when it accumulated on the frail. structure, the
Btit there was a fatal error in the charge of the learned judge to the jury on another and vital question in the case. The defendant contended that the plaintiffs intestate assumed, as incident to his employment, the risk of falling through this skylight oi: off the roof-when he went-up to remove snow. The rule of law that a servant assumes the apparent and obvious risks of his employment,- as well as those he may ascertain by ordinary observation, is too well settled and understood to require the citation of authorities to. support it. It was a crucial- question of fact whether, in this case, the existence' of the skylight and the danger of going upon the roof were known to, or might have been known to, the plaintiffs intestate, and there' was conflicting evidence upon that subject on which the jury might have found either way.. The point was raised very clearly and sharply by the - defendant’s counsel, and the learned judge in his main charge instructed the jury “ that if the deceased did know of the existence of that window, and nevertheless undertook to work there,, he assumed the risk of the apparent danger,” and “ it is for you, therefore, to say whether the decedent did know of the existence of that peril.” That instruction was correct. If Garety knew of the existence of the skylight and of the peril referred to, he assumed the risk of going to Work upon that roof. But at a subsequent stage of the trial the learned judge expressly retracted that proper instruction, and specifically charged the jury that it' was an errone
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., and O’Brien, J., concurred in the opinion of Patterson, J.; Williams, J., concurred in result.
Judgment reversed, new trial ordered, costs to appellant to abide event.