Altman v. Schwab Manufacturing Co. — 104 N.Y.S. 349

Majority

p. 349

ALTMAN v. SCHWAB MFG. CO.

(Supreme Court, Appellate Term.

May 16, 1907.)

Headnote

Master and Servant—Injuries to Servant—Assumption of Risk—Promise to Remedy Defect.

Where, on complaint of a servant that the machine with which he worked was dangerous, the master told him to continue work and the machine would be repaired in a couple of days, the promise constituted a contract of the master to assume the risk of injury from the time of the promise until the two days expired.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 638-644.]

Appeal from Municipal Court; Borough of Manhattan, Fifth District.

Action by Max Altman, an infant, against the Schwab Manufacturing Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

p. 350

Argued before GIEDERSEEEVE, P. J., and SEABURY and BRADY, JJ.

E. Sydney Berry, for appellant.

Poliak & Deutsch, for respondent.

Plaintiff, a young man about 18 years of age, was working on a machine in defendant’s employment, and was injured. He sued the defendant for damages, and obtained a judgment in his favor. Defendant appeals.

Defendant’s foreman put plaintiff to work on the machine. After he had worked on it about three weeks, he told the foreman it was out of order; that it shook too much. The foreman told*him not to mind about that, but to go on with his work. The plaintiff again spoke to the foreman, and requested him to have the machine fixed. The foreman said he would have it fixed in a couple of days, and told plaintiff to continue to use' the machine. We worked about two hours longer on this machine, when “it jumped,’’ or “wabbled,” and injured plaintiff. Under the employer’s liability act the assumption of risk by continuing in a dangerous position is a question of fact. The justice found, upon some proof, that plaintiff was free from contributory negligence in the management of the machine. The promise of the foreman to repair the machine, made to plaintiff to induce him to continue work thereon, constituted a contract on the part 'of the employer to assume the risk, and relieved the servant therefrom. Citrone v. Construction Co., 113 App. Div. 518 , 99 N. Y. Supp. 241 . This contract commenced at the time of the promise, and continued during the period of the agreement. And was in force at the time of the accident.

The judgment should be affirmed, with costs.