136 N.Y.S. 412 | N.Y. App. Div. | 1912
The plaintiff on the 24th day of November, 1909, was employed by the defendant, a brewing company, as a driver of a team engaged in the delivery of beer. He had been employed in a like capacity for a term of about two years, and under identically the same conditions, so far as we are able to discover. Upon the defendant’s premises was a separate room or budding known as the washroom. This room was used primarily for washing the empty beer kegs returned from customers, and the floor of this room appears to have been of-asphalt, though the plaintiff refers to it as being of cement, and we gather from the evidence that the washing out of the beer kegs resulted in the water flowing over this floor and out through a hole in the same about twelve inches square, leading to a drain underneath the floor. In one corner of this room, and opposite the main door, was a slightly raised platform of several planks, and above this was a blackboard, on which the various drivers wrote out the orders for beer which they had received from the customers for the subsequent deliveries. Near this blackboard was a tap or faucet, from which the drivers and other employees drew what beer they desired to drink while on duty. Just outside of this washroom the drivers loaded and unloaded their wagons. On the day above mentioned the plaintiff brought in a load of empty kegs and entered this washroom for the purpose of placing his orders upon the blackboard, and in passing from the door to the platform under the blackboard he slipped upon the wet floor, his foot passed into the drain hole in the floor, and he sustained injuries for which the jury has awarded a verdict of $1,000. The case was submitted to the jury on the theory that it was an action coming within the Employers’ Liability Act, and the learned trial
This judgment ought not tó stand for several reasons, one of them being that the cause of action pleaded has not been proved. The complaint alleges that “while plaintiff was in the performance of his duties as said employee of said defendant, and while he was passing through the brewery aforesaid, exercising all due care and prudence, owing to the carelessness and negligence of said defendant in allowing the floor of said brewery to be and remain in a slippery condition, and the failure of said defendant to repair a large hole located alongside of a drain in the floor of said brewery, plaintiff slipped and fell into the said hole, and sustained severe injuries to his head, body and limbs,” etc. Upon the trial the plaintiff testified in detail as to the construction of the washroom and its arrangement, and it appeared that there was no “large hole located alongside of a drain in the floor of said brewery,” which had not been repaired. On the contrary, it appeared that the floor was constructed for the very purpose of being flooded in the washing of the beer kegs, and that the floor slightly sloped toward a drainage basin or hole, and no one suggests the slightest defect, or any repair which might have been made. Indeed it is practically conceded on the part of the respondent that this room was adapted to the purposes of a washroom, and that the men engaged in the washing of the barrels might be properly deemed to have accepted the risks of the situation, but it is urged that the driver of a delivery wagon, who was called upon to enter this room and to pass near this drainage hole, was .entitled to a different construction, though just what it should have been is not suggested, nor is there any evidence that any other brewer had ever made any special provision for those incidentally in the washroom. Upon cross-examination the plaintiff admitted that he claimed that he slipped into the drain, as distinguished from a hole alongside of such drain, which had not been repaired, and defendant’s counsel moved to strike out the testimony as not in accordance with the pleadings. . This motion was denied, and an exception
The whole groundwork of the plaintiff’s case rests upon the theory that this washroom, concededly without defect for the main purposes of its construction and maintenance, Was defective as to this driver of a delivery wagon; that it was a “ way ” within the meaning of the Employers’ Liability Act for this driver to get to the blackboard, and that as to him the master owed a duty which required him to repair this drainage hole and the floor system of the room. This is certainly a refinement of the law which will, if adopted, open the way to abuses which could not have been contemplated by the Legislature, and we do not believe that it can he sustained upon any correct rule of reasoning. It is not, however, necessary to determine this question here, for the plaintiff’s pleadings do not attempt to assert that he was limited in his occupation to that of a mere, driver; he alleges generally that he was in the employ of the defendant, and that he was “in the performance of his duties as said employee of said defendant, and while he was passing through the brewery aforesaid,” he received his injuries. His testimony shows that he was in' this washroom in the performance of his duties, and it is shown by the evidence that he had been in this washroom in the performance of similar duties for a period of two years, hut there is not the slightest evidence that the defendant had any knowledge of any alleged defect in this so-called way, or that the plaintiff or any one else had ever suggested in any manner that there was any danger to be apprehended from the use of this drain in the performance of the ordinary work of washing out beer kegs or in going to this blackboard twice a day. Section 202 of the Labor Law (Oonsol. Laws, chap. 31; Laws of 1909, chap. 36), which was formerly section 3 of the Employers’ Liability Act (Laws of 1902, chap. 600) provides that “An employee, or his legal representative, shall not be entitled under this article to any right of compensation or remedy against the employer in any case where such employee knew of the defect or negligence which caused the injury, and failed, within a reasonable
But beyond this, the floor and drain arrangements of this washroom were not a “way” within the meaning of the statute; it was merely a place provided for the plaintiff to perform certain incidental services in connection with other employees who were engaged in washing out the beer kegs, and the place being constructed and equipped in a manner concededly well adapted to its main purpose, and not exposing the plaintiff to any undisclosed dangers in the performance of his incidental duties within the room, it is idle to contend that there was any liability on the part of the defendant. Webster defines “way” as “that by, upon, or along, which one passes or progresses; opportunity or room to pass; place of passing; passage; road, street, track, or path of any kind; as, they built a way to the mine,” and it is a word of much more limited extent than that of “works” used in the same statute, and which includes the entire plant, lands, buildings, machinery, etc. (People v. Haight, 54 Hun, 8; South St. Joseph Land Co. v. Pitt, 114 Mo. 135.) In Caldwell v. Mills (14 Can. L. T. 171) it was held that a plank was a “ way ” within the meaning of the Workman’s Compensation for Injuries Act (R. S. Ont., chap. 141, § 3, subd. 1), and a similar doctrine was held in U. S. Rolling Stock Co. v. Weir (96 Ala. 396). Applying the maxin of noscitur a sociis, the mean
If we are right in this position it follows that the action did not come within the letter or the spirit of the Employers’ Liability Act, and it was error, therefore, to submit the question to the jury, for the learned trial court admits in a memorandum that the alleged defect was open and obvious, and that at common law the plaintiff would not be entitled to recover.
If we should hold, however, that it was an action within the statute, we are still of the opinion that the judgment should be reversed as being against-the weight of evidence. Here was a man of full age, of a fair degree of intelligence, who had been going in and out of this room for a period of two years, knowing fully the purposes to which it was devoted, and to say that there could be any question about his knowing and appreciating any dangers which might attend the situation is absurd. There were no conditions which were not as open and as obvious to him as they could have been to the defendant, and while it is undoubtedly the duty of the court, under the statute, to submit the question of acceptance of the risk to the jury, it owes a duty of setting aside a verdict where it is not supported by evidence.
The real truth is that the situation did not suggest to any one that it was dangerous. The room had been prepared for certain work and it was well adapted to that work, and there was no reason to apprehend the accident which actually happened. It did not occur to the plaintiff, although he knew all about the situation, that the defendant could have known by the most rigid inspection, and the master is not liable because he has
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
Carr and Rich, JJ., concurred; Thomas, J., concurred upon the ground that the place of accident was properly maintained for the purposes of its use; Jenks, P. J., not voting.
Judgment and order reversed and new trial granted, costs to abide the event.