99 N.Y.S. 260 | N.Y. App. Div. | 1906
This is an action for damages by servant against master for negligence. This is the second trial. On the first the plaintiff had a verdict for $10,000 but it was reversed here by a vote of three to two without opinion, but - on the stated ground “ that the plaintiff assumed the risk which resulted in the injury complained of.” There was a dissenting opinion (95 App. Div. 628). On this trial the learned trial judge- reserved the defendant’s motion at the close to dismiss until after verdict (which was for the plaintiff for $5,000), and then set the verdict aside and granted it.
The defendant was unloading a barge of linseed, by hoisting the
- It was no doubt for the jury to say whether the employer was not guilty of neglect of duty to his servants -in not furnishing means for them to prevent themselves from being,drawn down to the leg buckets by the grain when it grexv "quick, such as the simple device of ropes extended taut across the boat from side to side, or hanging overhead from the deck' ceiling, or along the side's, or of guard ropes or rails around the leg. This does not seem to have been questioned when the case was here before, noi' is.it seriously questioned now.
An assumption by the servant of a risk which it is the master’s duty to remove can rarely be found as a question of law. All risks whether plain or obscure and uncertain, which áre incident to the work, and cannot be avoided by the master in the fulfillment of his duty to provide his servant with safe appliances and a safe place to work, are assumed by the servant as matter of law, unless the master assume them by agreement. This is familiar to us all. But the risks which can be avoided by .the master by fulfilling his said duty, are not assumed by the servant unless they be so plain and certain to him that it has to be said as matter of law that his working in the face of them, was an assumption of them (Hawley v. Northern Central R. Co., 82 N. Y. 370 ; Kain v. Smith, 89 id. 375 ; Davidson v. Cornell, 132 id. 228 ; McGovern v. C. V. R. R. Co., 123 id. 280). If they be not so plain and certain a.s that, then the question becomes one of fact instead of law, with the burden of' proof on the master (Dowd v. N. Y., O. & W. R. Co., 170 N. Y. 459) ; and that was this case on the second trial, for the case on that head was then materially different to what it was on the first trial. The'accident happened immediately on the plaintiff getting down the hatch,-where he was hurried by the foreman. It cannot well be said that he assumed the risk of his situation in the moment which ensued before the accident. If he had been sent dqwn a little later, when the exhausted space would have been greater, and he could have got farther from the leg, the accident would probably not have happened at .all.
On the second trial the jury were probably influenced in respect
The-judgment should be reversed and a new trial granted.
Jenks, Hooker, Rich and Miller, JJ., concurred.
Judgment and Order reversed and new trial granted, costs to abide the' event.