Dooling v. Verein — 97 A.D. 39

Majority

p. 39

James Dooling, Appellant, v. Deutscher Verein, Respondent.

Headnote

Negligence—interference with an electric switchboard, by an employee engaged in other work, which results in injury to an employee having charge of an electric fan — assumption of risk—rules to prevent such an accident.

In an action brought to recover damages for personal injuries, it appeared that the plaintiff was employed as an assistant engineer in the clubhouse of the defendant corporation; that in one of the rooms of the house was a switchboard controlling an electric fan; that about two feet distant from this switchboard was another switchboard controlling apparatus for heating irons stationed in the laundry; that while the plaintiff had hold of one of the blades of the electric fan for the purpose of examining it, a laundry woman, evidently by mistake, went to the switchboard controlling the fan and set it in motion, causing three fingers to be taken from the plaintiff’s right hand. The plaintiff had worked in the clubhouse for about two weeks and was aware that the laundry women were in the habit of turning on the current from the switchboard connected with the laundry, and his testimony indicated that he was alive to the danger which might arise out of the likelihood of precisely such a mistake as occurred.

■ Held, that as both the plaintiff and the laundry woman who started the fan had been intrusted with the operation of certain parts of the electrical machinery,

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the act of the laundry woman in operating the switchboard was that of a fellow-servant of the plaintiff, for which the defendant was not liable;

That the plaintiff assumed whatever risk was involved in the action of the defendant in permitting the laundry woman to operate the switchboard connecting with the laundry;

That negligence on the part of the defendant could not be predicated upon its failure to promulgate and enforce rules and regulations calculated to prevent the happening of such an accident, as the complaint contained no allegation of negligence in this respect, and for the further reason that the evidence failed to establish such a condition as made it legally incumbent upon the defendant to establish such rules prior to the accident.

Appeal by .the plaintiff, James Dooling, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of April, 1903, upon the dismissal of the complaint by direction, of the court’ after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 21st day of May, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

Louis A. Laffer, for the appellant..

Robert Thorne \Fran7e V. Lohnson with him on the brief], for the respondent.

Giving to the plaintiff the benefit of every inference which may fairly be drawn in his favor, as we are bound to do upon an appeal of this character, the facts which constitute his cause of action as proved upon the trial may be stated as follows :

At the time of the accident which has given rise to this action the plaintiff as an assistant engineer had been in the employment of the defendant corporation in its clubhouse in the city of Mew York for ajperiod of about two weeks. In the clubhouse was an electric fan used for ventilating purposes. This fan was set in motion by means of an electric current from a switchboard.. About two feet distant from this switchboard was another switchboard by means of which an electric current could be sent into the laundry for the purpose of heating the irons there. The plaintiff, desiring to examine the fan to see whether there was anything loose in it, had turned off the electric current and had taken hold of one of the blades in order to make the desired examination, when a woman employed in the

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laundry came to the switchboard communicating with the fan and turned on the current, setting the fan suddenly in motion,( with the effect of cutting off three of the fingers of the plaintiff’s right hand. It may be inferred, although there is no direct proof on the subject, that the laundrywoman did this by mistake, having gone to the wrong switchboard though intending to go to that. which communicated with the laundry. The plaintiff was aware that women from the laundry were in the habit of turning on the current from the switchboard which communicated with the apparatus for heating the irons. He had conversed with the chief engineer of the club on the subject before the accident, asking him whether he allowed women to meddle with the machinery; and the chief engineer had responded in the affirmative, whereupon the plaintiff had remarked : “ 1 was never anywheres in an engine room that there was women in allowed to go and meddle with the machinery before.”

At the close of the evidence of the plaintiff counsel for the defendant moved to dismiss the complaint on the ground that if the fan was put in motion by a servant, the plaintiff knew that the servant was liable to come in and start it, and on the further ground that if the servant made a mistake it was the mistake of a fellow-servant. . The court granted the motion without expressly stating any reasons for so doing, and the plaintiff has appealed.

Upon these facts I am unable to see how any liability for the accident can be attributed to the defendant. Assuming that the injury was the result of negligence, it was plainly the negligence of a fellow-servant. It is argued that service as an assistant engineer and service as a laundrywoman cannot be regarded as service in a common employment. The particular service with which we are here concerned, however, related to the management of machinery in the defendant’s clubhouse, and both the plaintiff and the laundrywoman who started the fan, probably by mistake, were intrusted with the operation of certain parts of that machinery. I think this clearly made them fellow-servants. The act done by the laundrywoman pertained only to the duty of an operator, and she being a mere servant, her improper performance of the act did not render the common master liable to a fellow-servant. (Crispin v. Babbitt, 81 N. Y. 516 .)

Furthermore, it seems equally clear that the plaintiff assumed

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whatever risk was involved in the action of the defendant in permitting the laundry woman to operate the switchboard connecting with the laundry. He was aware of its proximity to the other switchboard, and his own testimony indicates that he was alive to any danger which might arise out of the likelihood of precisely such a mistake as seems to have occurred.

It is contended in behalf of the appellant that the defendant corporation was negligent in not making, promulgating and enforcing rules and regulations calculated to prevent such an accident as that which occurred in this case. As to this point it is to be observed that the complaint contains no allegation of negligence in this respect; but even if a recovery might be had on that ground, in the absence of such allegation, the proof, as it seems to me, fails to establish any such condition of things as made it legally incumbent upon the defendant to establish such rules prior to the occurrence of this accident. It does not appear that any similar accident had ever occurred to put the defendant’s officers or agents upon guard on the subject, or that they had permitted any general intermeddling with the machinery on the part of the laundry women, or anything except the use of the switchboard by them which was connected With the laundry. While it might well be said now that they ought to take some precaution to guard against a similar accident, it can hardly be held as matter of law that the probability of a mistake .was so evident that they ought to have taken some steps to avert its possibility. (See Berrigan v. N. Y., L. E. & W. R. R. Co., 131 N. Y. 582 .)

The judgment and order should be affirmed.

Judgment and order unanimously affirmed, with costs.

Cases cited

Crispin v. Babbitt 81 N. Y. 516 N.Y. 1880-09-21 p. 41
Berrigan v. New York, Lake Erie & Western Railroad 131 N. Y. 582 N.Y. 1892-02-12 p. 42