Collelli v. Turner — 215 N.Y. 675

Majority

p. 675

Antonio Collelli, Appellant, v. Myron D. Turner et al., Composing the Copartnership of Rutter & Turner, Respondents.

(Argued April 28, 1915;

decided June 1, 1915.)

Headnote

Employers’ Liability Act — not applicable to common-law action.

The provisions of the Employers’ Liability Act making the question of assumption of risks by an employee one of fact, do not apply to an action brought under common-law principles.

. Collelli v. Turner, 154 App. Div. 218 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 13,1912, affirming a judg

p. 676

ment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term.

William H. Griffin and Martin T. Mantón for appellant.

John O. Robinson and James B. Henney for respondents.

This action was brought by the appellant to recover damages for personal injuries sustained by him while in the employ of defendants, and he seeks a recovery under common-law principles. The injuries sustained by plaintiff were the result of an accident to his hand while he was engaged in operating a press used for stamping skins. In the proper operation of this machine, as the result of pressing a treadle, the bed of the machine would rise against a die and make the desired impression upon the skin and then fall back.

It was the claim of the plaintiff that through the defective condition of the machine the bed at times would thus rise without any pressure on the treadle and that this was what occurred on the occasion of the accident when he was injured.

I think it is clear that the plaintiff knew enough about the alleged defect of this machine and about the possibility of such an accident as occurred so that he must be deemed to have assumed as matter of law the risks incident to the operation of the machine, unless the provisions of the Employers’ Liability Act, making the question of assumption of risks by an employee under such circumstances one of fact, apply to an action brought under common-law principles.

In my opinion this question has been decided by this court adversely to the contention of the plaintiff. (O'Neil v. Karr, 110 App. Div. 571 ; 115 App. Div. 881 ; affirmed, 190 N. Y. 509 ; Clark v. N. Y. C. & H. R. R. R. Co., 191 N. Y. 416 ; Arnold v. National Starch Co., 194 N. Y. 42 ; Jackson v. Greene, 201 N. Y. 76 . See, also,

p. 677

Seaboard Air Line Railway v. Horton, 233 U. S. 492 ; Southern Railway Co. v. Crockett, 234 U. S. 725 .)

The judgment appealed from should be affirmed, with costs.

Collin, Cuddeback, Hogan, Oardozo and Seabury, JJ., concur; Willard Bartlett, Ch. J., absent. Judgment affirmed.

Cases cited

O'Neil v. Karr 110 App. Div. 571 N.Y. App. Div. 1906-01-08 p. 676
People ex rel. United Const. Co. v. Voorhies 115 App. Div. 881 N.Y. App. Div. 1906-09-18 p. 676
Goldman v. Goldberg 190 N. Y. 509 N.Y. 1907-11-19 p. 676
Clark v. New York Central & Hudson River Railroad 191 N. Y. 416 N.Y. 1908-03-31 p. 676
Arnold v. National Starch Co. 194 N. Y. 42 N.Y. 1909-01-05 p. 676
Jackson v. Greene 201 N. Y. 76 N.Y. 1911-02-07 p. 676
Seaboard Air Line Railway v. Horton 233 U. S. 492 SCOTUS 1914-04-27 p. 677
Southern Railway Co. v. Crockett 234 U. S. 725 SCOTUS 1914-06-22 p. 677