56 A.D. 528 | N.Y. App. Div. | 1900
“ If a master is engaged in a complex business that requires definite regulations for the safety and protection of his employees, a failure to adopt proper rules, as well as laxity in their enforcement, is negligence per se, and the establishment of defective or improper rules is such negligence as renders the master responsible for all injuries resulting therefrom.” (Wood Mast. & Serv. [2d ed.] § 403.)
The rule thus stated by Mr. Wood was approved by the Court of Appeals in Morgan v. Hudson River Ore & Iron Co. (133 N. Y. 666), and is to be regarded as correctly laying down the law of this State on the subject.
The plaintiff in the present action, while employed in the machine shop of the defendant, at work upon a lathe, was struck in the eye by a piece of iron which was chipped off an engine frame by a fellow-laborer who was at work at a distance of between nine and twelve feet from him. The principal contention in his behalf upon the trial was that the defendant corporation was negligent in failing to establish and enforce proper rules, which would have prevented such an accident. The testimony, when considered with the picture of the interior of the machine shop, which is contained in the appeal
The learned trial judge properly instructed the jury that if dangerous chipping had been going on in the vicinity of the plaintiff for some time and he knew of it and saw that no screens were put up, and nevertheless continued at his work without any complaint or any request for screens, he took the risk of the injury. As to this branch of the case the plaintiff’s own testimony authorized the jury to find that such chipping as had been done in the machine shop to his knowledge up to the time of the accident had been done in such a way as not to throw the chips toward him at all; and hence that nothing had occurred to call his attention to the fact that there was no rule or custom of the establishment calling for the use of screens when chipping was done under such circumstances as to expose the fellow-workmen of the chipper to danger from the flying bits of iron. This evidence suffices to take the plaintiff out of the operation of the rule that a servant assumes all the risks incident to a business when he knows that no suitable rules or regulations have been adopted for its management.
I think the judgment should be affirmed.
All concurred, except Hirschberg, J., dissenting.
Judgment and order affirmed, with costs.