Majority
Headnote
Master and Servant (§ 211[1] ) — Personal Injuries — Assumption1 of Risk — Places of Work—Quarries.The pleadings as originally made in this case set out a cause of action under the employer’s liability act, alleging negligence on the part of defendant’s foreman, acting as superintendent, in permitting a tree to fall upon him while engaged in working in a stone quarry. Upon the trial it developed that the plaintiff had not served the notice required by statute, and over the defendant’s objection and exception the plaintiff was allowed to amend his complaint and proceed at common law. It.does not appear necessary to determine whether the plaintiff could be permitted to do this. His cause, of action under the employer’s liability act (Daws 1902, p. 1748, c. 600) consisted in the alleged negligence of the foreman in removing a tree from the top of the embankment near where the work of getting out stone was in progress, while the only ground of negligence urged under the common-law cause of action is that the plaintiff was not provided with a reasonably safe place in which to perform his work. The causes of action are radically different. However, the court refused to permit the case to go to the jury, and directed that the exceptions be heard in the first instance by this court; and, as the cause of action which was tried clearly could hot be maintained, it is sufficient to dispose of the case upon that ground.
It seems the stone quarry was about 20 feet deep; that the plaintiff was employed with a pick, crowbar, and other appliances in digging down the stone after the firing of blasts; that on the day of the accident the defendant’s foreman, in the prosecution of the work, found it necessary to remove a tree some 70 feet tall from a point on the embankment above the place where the plaintiff was at work; that
There is no complaint that the defendant had not supplied a reasonably competent foreman. There is no suggestion that the taking down of this tree was not a mere incident in the performance of the work of getting out stone at this quarry, and just what duty the defendant owed to the plaintiff, which was not performed, is not clear to us. The suggestion that the presence of this tree upon the embankment was such a menace in and of itself that the defendant had failed in its duty to provide a safe place for the plaintiff to perform his work is drawing too fine a point to be practical. The tree was not a menace on other days, or upon that day, until the act of the foreman in blasting away the roots made it topple over; and this, we must assume, was rendered necessary by the progress of the work. It would not do to keep on taking out the foundation from under the tree. It was the part of prudence, as the excavation neared the tree, to remove the same, and the foreman was engaged in doing this when, the accident resulted. It was as much a detail of the work as it was to blast down the rock which underlaid the roots of the tree, and the defendant had a perfect right to intrust this detail to a competent foreman, and the plaintiff accepted the risks of the employment, which were open and obvious to him, after the defendant had performed its duty. The case of Perry v. Rogers, 157 N. Y. 251 , 51 N. E. 1021 , is ample authority for the disposition which has been made of this case, and we see no reason for continuing the discussion.
The order dismissing the complaint should be affirmed. ■ All concur.
Cases cited
- Perry v. Rogers 157 N. Y. 251 p. 71