99 N.Y.S. 375 | N.Y. App. Div. | 1906
The defendant was engaged in changing the tracks "of .the Hew York Central and Hudson River Railroad Company at Fifty-sixth Street and Park avenue, Hew-York city, and the plaintiff, its servant, was at work with a number of. other me'n, under a. foreman whose principal diity appears to have been the superintendence of the portion of the work upon which the plaintiff was employed. Trains were passing over the tracks at this point at frequent inter
While the servant assumes the dangers incident to the work which he is" doing, he only, assumes such dangers as arise after the master has performed its duty, and. it is well settled that the duty of the master to furnish a safe place includes the duty to exercise reasonable care and "prudence to guard against such dangers as may reasonably be foreseen and guarded against (Pantsar v. Tilly Foster Iron Mining Co., 99 N. Y. 368 ; McGovern v. C. V. R. R. Co., 123 id. 280), and if the place may become dangerous by reason, of perils not arising from the particular work, it is the master’s duty to give such warning as will enable the servant in the exercise of reasonable care to avoid or guard against such '.additional dangers. (Felice v. N. Y. C. & H. R. R. R. Co., 14 App. Div. 345.) It is difficult to distinguish the case last cited from the case at bar, because it cannot matter that the added danger arose not from other work pertaining to the master’s business, but from work of third persons, provided the master knew that such danger was bound to occur. , In the case at bar we have the concession that the master took no means whatever to give its servant warning of a danger which it must have-known was constantly occurring. The fact that it had a foreman on the spot-cannot relieve it from liability, because the master could not delegate the duty of exercising reasonable
The judgment should be reversed and a new trial granted, costs to abide the event. ■ .
HlRSCHBERG, P. J., WOODWARD, JENKS and HOOKER, JJ., concurred. •
Judgment reversed and new trial granted, costs to abide the event.