Heavey v. Hudson River Water-Power & Paper Co.

10 N.Y.S. 585 | N.Y. Sup. Ct. | 1890

Landon, J.

The plaintiff assumed all the risks incident to his employment, except those which the reasonable care of the defendant could, and therefore should, have protected him against. Grant that the pole was in good condition, and that the plaintiff’s liability to lose his balance, or slip and fall, was as common to any other place as to this; and thus far the plaintiff assumed the risk. That he should slip and fall was, independently of the place into which he should fall, too ordinary and common an experience with such a youth to be a matter of concern to his master or himself. But if, when he should fall, he must inevitably fall into a deep vat containing scalding liquor, then the situation is different. If, by reasonable care, the master could protect him from falling into the vat, as by guard-rails or covers, or other appliances not materially obstructive to the business, then the omission of some such protection would be the fault Of the master. The plaintiff did not assume the risks which his master should have protected him from, unless he can be properly charged with negligence in accepting the place of labor which his master assigned him. If the defendant should claim that the plaintiff was negligent in the respect last stated, all he could ask, upon the evidence, would be to have the jury pass upon the question. We think, under the circumstances presented, that it was a question of fact whether the plaintiff’s risk of falling into the vat, in case lie should fall at all, was not one for which the defendant was responsible; and therefore, if the non-suit was granted because it was clear, as a matter of law, that the plaintiff assumed it, it was error.

The learned trial judge, in effect, held that, because the plaintiff knew that the end of his pole had become soft and spongy, he therefore knew that it had become unfit for use, and his further use of it was negligence which contributed to his injury. This proposition assumes that the facts admit of but one inference, and that against the plaintiff. We think that fair men might, with entire fairness, make a different inference. The testimony tends to show that the plaintiff faithfully followed his instructions. He was 15 years old, without previous experience; was given his place of labor, this pole, and certain instructions as to its use. He knew, of course, that the end of the pole was becoming soft and spongy. But he might or might not suspect that it was becoming unsafe. We have no right to assume that he knew. Ho one had told him, and bis experience had not instructed him. Why should he expect it to slip, or fear it? The jury would not exact from this lad any more thought or care than he was able to give, nor any more knowledge than he had. We think it was for the jury, and not for the court, to determine whether the plaintiff was negligent in this respect.

If the jury should conclude that the plaintiff ought to have béen instructed with respect to the proper treatment of his pole in case the end became soft, it would follow that the failure to instruct him was an omission of duty on the part of the defendant. A servant may ordinarily be expected to know when his tools need repair. But, in the absence of experience and instruction, a lad cannot be expected to know intuitively, or as fully as his experienced master; and it is reasonable that he should be warned against such deterioration of them as endangers his safety, especially when it is of such a nature as requires instruction to arrest bis attention or excite his apprehension. Every case must be governed by its own circumstances. In this case the question whether the defendant ought to have given the plaintiff further instructions seems to be involved, and to bear directly upon the question of the plaintiff’s negligence, and also upon the question of the defendant’s negligence. It is aquestion for the jury. Judgment reversed; new trial granted; costs to abide the event.

Learned, P. J., and Mayham, J„ concur.