100 N.Y.S. 731 | N.Y. App. Div. | 1906
This is aft action to recover damages for the- death of the plaintiff’s intestate because of injuries alleged to have been sustained through the negligence of the defendants. The defendants had the contract to do the mason work ift the erection of a building in the city of New York. Others had contracted to-do the carpenter work and plastering. Plaintiff’s intestate was a helper to defendants’ masons. There was an elevator shaft in -the building in which was an elevator used by defendants for the purpose of lifting mate
The fact that the learned trial court left a question of whether or no the intestate had been guilty of contributory negligence did not meet the direction of this court. In Dowd v. N. Y., O. & W. R. Co. (170 N. Y. 459) it was said: “The doctrine of assumed risks rests upon the implication of a promise by the employee to waive the consequences of dangers of which he is fully aware. It is distinct in principle from the doctrine of contributory negligence, although they have frequently been confounded by the courts. * * * One who is injured by his own negligence is regarded by the law as not. having been injured at all so far as other, parties are concerned. By assuming the risk the plaintiff does not intervene but waives. Intervention in order to break the causal connection between the negligent act and the injury must come in between them. The assumption of the risk does not come in between, but is in- advance of both. The independent will of the plaintiff is not exercised by intervening, but by voluntarily waiving and releasing when he enters the service, any right of action which might accrue to him from the cause stated.” And in Drake v. Auburn City Railway Go. (173 N. Y. 466) the court said : “ The rule of the assumption of obvious risks does not rest wholly upon the implied agreement of the employee, but on an independent act of waiver, evidenced by his continuing in the 'employment with a full knowledge of all the facts.”
In Maltbie v. Belden (161 N. Y. 301) the court said: “ A servant assumes not only the risks incident to his employment, but all dangei-s which are obvious and apparent, and so, if he voluntarily enters into or continues in the service, having knowledge, or the means of knowing the dangers involved, he is deemed to assume the risks and to waive any claim for damages against the master in case of personal injury.”
It. is quite apparent on careful reading óf the act that the doctrine of the assumption of obvious risk has not been eliminated in an action by an employee against his employer, even if the negligence Slleged;be the failure to obey .the strict provisions of the law as to furnishing of safeguards against injury to the employee, If that
This interpretation of the statute has the authority of the following cases: Vaughn v. Glens Falls Cement Co. (105 App. Div. 136); Di Stefeno v. Peekskill Lighting & R. R. Co. (107 id. 294); Wynkoop v. Ludlow Valve Manufacturing Co. (112 id. 729), and Reilly v. Troy Brick Co. (184 N. Y. 399), where Judge Werner said : “ It is true that the plaintiff’s intestate was there daily,, and that his experience, even as an ordinary laborer, might have enabled him to anticipate the danger quite as thoroughly as his superior ought to have done, but whether he assumed that particular risk or was guilty of contributory negligence under the circumstances detailed were questions of fact for the arbitrament of a jury.”
Therefore, it follows that the defendants, by the refusal of the learned court to submit'to the jury the question of the assumption of obvious risk as a question of fact, were deprived of a Substantial right.
It follows that the judgment and order must be reversed and a new trial granted, with costs to the appellants to abide the event.
O’Brien, P. J., Ingraham, Houghton and Scott, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellants to abide event. Order filed.