9 N.Y.S. 92 | N.Y. Sup. Ct. | 1890
The deceased, a son of plaintiff, 14 years old, was hired by the defendant to do work on defendant’s farm for board and clothing. Defendant, with the deceased and another boy, named Bivenburgh, 15 years old, went out to a lot to have them saw logs under defendant’s direction. The boys were set at this work by defendant, and they sawed one log. Then defendant and the boys arranged another log for sawing. This second log was about 32 feet long and 6 feet around. It was placed so that, it would seem, the middle, or about the middle, of the log, rested on a stump. The place was a hillside, and the declivity was about 33 feet in 100. The log was placed with its side to the hill. The boys were stationed one on each side of the log, and were to saw the log in the usual manner, with a cross-cut saw. The log was steadied upon the stump by a stick. The object of placing the log on the stump appears to have been to prevent the log from binding the saw as the work progressed. The deceased was placed on the hill above the log,—Bivenburgh below; and defendant told the deceased to stay there. Defendant went away, but, apparently, not very far. The boys worked half an hour, and then changed places. When they had sown through the log, the two parts fell on the side of the hill below the stump. The butt log began to roll down hill, and the other part soon followed. The deceased ran to get out of the way of the logs; but his foot was caught after he had run about 24 feet, and the log rolled over him, and killed him. It weighed about 3,500 pounds. The defendant was near enough to see the accident; for when the logs began to roll he called to the deceased: “Lookout, bub!” The learned justice nonsuited the plaintiff on the ground that the deceased disobeyed the defendant’s direction in going from the position above the log to that below, and that this disobedience contributed to the death of deceased. The plaintiff claims that the defendant was negligent in placing the log so that the parts would certainly roll down the hill when sown apart, and and in not putting some block or obstacle to prevent this accident when putting inexperienced boys at such dangerous work, and in not warning them of the danger.
In considering what effect is to be given to the defendant’s instruction when he placed the deceased above the log, we must consider the circumstances. Here were two boys nearly of the same age, and, so far as appears, of equal experience. In this mode of sawing, it is necessary that one should be on each side. Where the ground on one side is higher than on the other, different positions of the body may be required on the different sides. The deceased sat on his overcoat when working on the upper side; and, naturally, after working for a time, it would be a relief to each boy to change to the other side, so as to take a new position of the body. If one side was dangerous, and the other was not, there was not such a difference in the size of the boys that one could be safely exposed to the danger, and the other could not. We can hardly suppose that the defendant placed the deceased on the upper side of the log in order to give him a safe position, when we see that at the same time he placed the Bivenburgh boy on the lower side, in a place of danger. This would be to impute to him a disregard of the safety of the Bivenburgh boy. How, when defendant placed the boy at this work, if, as might be found by the jury, there was a dangerous place connected with the work, the boy should have been informed of, and able to appreciate, the danger, before the defendant could be held to have performed his whole duty. Hickey v. Taaffe, 105 N. Y. 36, 12 N. E. Rep. 286. There is no evidence that the danger of the situation was explained to these boys, or to either of them, or that any caution was given to them. If the boys had not changed places, then it is quite probable that Bivenburgh would have been killed in the same way.
The questions, after all, are whether defendant was guilty of negligence, and whether the deceased was guilty of contributory negligence; and the fact that the deceased went to the lower side is material as bearing on this latter question, and perhaps on the former. We think that his act was not conclusive on that question; for, if a master puts a servant at work near a dangerous place, it may not be sufficient care on the master’s part to put the servant on a spot which is out of danger, and simply tell him to stay there, without warning him of the peril of going to the dangerous place. And it may not always be negligence for the servant to change his position, especially when circumstances show that the place to which he goes is not considered dangerous by the master; and, though a servant should disobey his master’s orders such disobedience is not punishable with death. Nor is disobedience to the, master’s commands necessarily contributory negligence, when injury results to the servant. Negligence implies something more,—a disregard of proper care of one’s safety. It is contributory negligence, not a contributory act, which defeats a recovery. The judgment should be reversed, and a new trial granted; costs to abide event. All concur.