13 Misc. 657 | The Superior Court of the City of New York and Buffalo | 1895
The record is singularly free of conflicting testimony, and the questions presented may be disposed of on undisputed facts. The origin of the fire is not known, and while the complaint alleged negligence on defendant’s part, in its origin, such claim was abandoned upon the trial, and is not now urged. It is also conceded that the fire escapes were sufficient, and that no .liability can be predicated upon failure of compliance with any statutory duty in that regard. The court below, in its submission of the case, authorized the jury to say whether or not the fastening down of the windows made egress by them difficult, and, if so, did this impediment prevent deceased from leaving the building, whereby he lost his life? Claim is now made, and pertinaciously argued, that this proposition presented a question of fact for the jury, and that their finding upon it ought not to have been disturbed. The rule at common law did not require that the owner of a building was bound to anticipate its possible destruction by fire, where, from the use to which it was put, or its location, it was not peculiarly exposed to danger from that source, in consequence of which the usual and ordinary modes of ingress and egress furnished by doors,
If we say that the fastening was an obstruction, plaintiff is not assisted. Deceased had been at work in the factory for over 12 years. He was therefore familiar with the methods used, and Ms surroundings. All of the witnesses who were called by plaintiff were men engaged in the same general employment, and they each testify that the windows were fastened down, to their knowledge. Huda, from his length of service, the general knowledge of the men, the necessities of the business, and the process of manufacture, must be presumed to have known, or possessed the means of knowing, what was the common knowledge of all. The condition being known, the risk of the situation was assumed. Crown v. Orr, 140 N. Y. 452, 35 N. E. 648, where it is said, “If he voluntarily entered 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.” There is no exception to tMs rule, but there are distinctions of fact not always entirely clear. The risks which the servant does not assume are pointed out in McGovern v. Railroad Co., 123 N. Y. 280, 25 N. E. 373, and still further applied in Davidson v. Cornell, 132 N. Y. 228, 30 N. E. 573, and many other cases. It is not profitable to enter into an extended discussion of them. It is sufficient now to say that, however much particular facts may obscure the distinction, and render the rule difficult of application, no case is found holding that liability attaches to the master where the work carried on produces the condition, and such condition is known, or the means of knowing it are furnished the servant. As applied here, the process of manufacture required a high and uniform temper
Other questions are presented by the record, but we refrain from further discussion, as they are not likely to again arise, if the view now taken be finally upheld. This length of discussion seemed to be required, in view of the importance of the case, and the pending of other actions. We are led to the conclusion that the order setting aside the verdict was right, and should be affirmed.