Schermerhorn v. Glens Falls Portland Cement Co.

The learned trial justice put the dismissal of the complaint upon two grounds, first, that the plaintiff had not given the notice to his employer required by section 2 of chapter 600 of the Laws of 1902, within 120 days, stating the time, place and cause of the injuries he received, and, second, that under the facts as proven the plain

With respect to the first ground it may be said that since the trial the Court of Appeals has held that chapter 600 of the Laws of 1902 did not apply t,o a case where,, as here, the complaint does not charge any liability based upon the provisions of that statute, but only applies to any néw or extended liability created thereby. (Gmaehle v. Rosenberg, 178 N. Y. 147 .) Here the negligence charged in the complaint is “that the defendant did not'furnish the plaintiff a reasonably safe place to work,” and the facts are alleged upon which that conclusion is predicated. As was said in the case cited: “ It was the' settled law of this Stat'e prior to the enactment of the statute that the master was bound to exercise reasonable care to provide the servant a safe placé to work and safe and suitable machinery and appliances with which to work, and that for a failure to' exercise such a degrée of care he was liable to the servant for any injury caused thereby, This is what our courts and the courts generally throughout the country have held to be the common-law liability of the master.”

The complaint here having alleged a good cause of action under the common law and one, therefore^ not created by the act of 1902 the complaint should not have been dismissed for failure to allege and prove that the notice required by section 2 of that act was given.

We think also the court was in error in dismissing the complaint on the other ground mentioned.

The plaintiff was employed as á cement burner by the defendant. In its mill where he worked there were ten kilns for burning cement. These were built of brick and were each about sixty-five feet in circumference and about ninety feet high running through four stories of the mill. The method of burning was as follows: The material from which the cément was made was put in the kilns near the top on the fourth floor. The coal was fed into the kilns on the third floor. On the second floor there were four doors on opposite sides of the kilns through which, when opened, long rods were inserted to poke the cement down. On the first floor the burned product was drawn from the kilns. The plaintiff’s work was in poking down the cement with a long rod at one of the kilns

Another of these bands had broken several months before and in falling broke an employee’s leg. After this the plaintiff told the foreman of the burners that the band was wrong and if it was not loosened he would not work there and the foreman replied “ that he would see that it was attended to at once.” The matter was also called to the attention of the superintendent by a committee of the men and he suggested that it could be made safer by loosening the bands, and said that he would have them loosened, and as soon as they got material he would have something put up as a guard. After this and before plaintiff was injured four lateral iron guards, running from the floor to the ceiling outside and crossing the bands on four sides of the kiln, were put up. 1 These were intended to prevent a band from flying out from the kiln in case it should break.

While it is the rule that a servant assumes all the risks usually incident to his employment, yet that rule is based on the supposition that the master has exercised reasonable care in providing the servant a safe place in which to work, and it is those risks only which cannot be obviated by the exercise of such care by the master that the servant assumes. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368 .) Known dangers which can be avoided by the

The court, in holding that the plaintiff assumed the risks, put its ruling in this respect on the ground that the plaintiff knew the cause of the danger equally with the defendant, or, in other words, that it was an obvious risk. If that was so, the ruling was undoubtedly right, but the plaintiff was entitled on a motion to dismiss the complaint at the close of his Case to the most favorable view of the evidence that could be taken, and we must apply that principle in reviewing the ruling. When the danger was pointed out to the foreman and the superintendent.the plaintiff was assured that the bands would be loosenéd at once. While the lateral guards were put on after that these would not prevent ,the bands from breaking by the expansion of the kilns, but the loosening of the bands would. It is a fair inference from the evidence that the plaintiff assumed that the foreman or superintendent had loosened them as they said they would, and if they had done so the accident would not have happened. More than this, the rivets sheered off and the band parted on the opposite side of the kiln from where the plaintiff was standing. He testified: “ I did not know that the band had not been loosened; I supposed that when he said that he would do a thing he done it; I could not see from where I stood and worked whether it had been loosened or not; no maní could, because the dust was so settled around there between draws that it would cover everything up; there was much dust; at the time of the draws there was dust, smoke and gas.” With this evidence in the case we think the court should not have held as a matter of law that the risk was an obvious one, but that a question of fact was presented which should have been submitted to the jury. We think also that there was enough evidence to require the submission of the questions of defendant’s negligence and of plaintiff’s freedom from contributory negligence to the jury, and, therefore, that the complaint should not have been dismissed.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.