Rossiter v. Peter Cooper's Glue Factory

This appeal is from a judgment dismissing the plaintiff s complaint in an action by an employé to recover for personal injuries, and also from an order denying plaintiff’s motion for a new trial. The complaint alleges a cause of action under the Employer’s Liability Act (Consol. Laws 1909, c. 31, §§ 200-204), at common law, and also under section 81 of the Labor Law (Consol. Laws 1909, c. 31). The notice served under the Employer’s Liability Act was excluded as insufficient, and, when the plaintiff rested his case, the complaint was dismissed upon the ground that the cause of action under the Labor Law could not be maintained (in making this ruling the learned court followed the decision of this court on a former appeal), and also upon the ground that there was no evidence establishing defendant’s liability at common law. As indicated, the case has been here before. On the first trial the plaintiff obtained a judgment which was reversed. 149 App. Div. 752 , 134 N/ Y. Supp. 162." Upon the second trial, the plaintiff proceeded upon the theory that the defendant was liable upon each of the causes of action set forth in the complaint, and he gave some additional evidence which it is claimed obviates the difficulties which prevented an affirmance when the case was here before. I think he is right, and I am also of the opinion that the judgment must be reversed on the authority of Fitzwater v. Warren et al., 206 N. Y. 355 , 99 N. E. 1042 ; Welch v. Waterbury Co., 206 N. Y. 522 100 N. E. 426 .

The plaintiff had been in defendant’s service at the time of the accident 32 years, being employed nearly all of that time in the skinning department. Two or three weeks before the accident he was transferred to the evaporating room, and a day or two before the accident he was sent to the foreman of the boiling house. At about 11 o’clock pn the day of the accident, the foreman directed plaintiff to accompany him upstairs to the floor of the boiling room. Thére were a number of vats in this room in which material entering into the manufacture of glue was boiled and treated/ The vats were five feet wide, ten, feet long, and about five feet deep. The top of the vats were level with the floor. The vats, are filled with glue stock (pieces of skins, hides, and meat of different shapes and sizes, some being three feet in diameter), and the ,vats are then filled with boiling water which is kept boiling by live steam which is turned into the bottom of the tank. In order that the material may be properly dissolved, it was necessary to keep it continuously in motion. The foreman directed plaintiff to go to vat No. 4. Plaintiff testifies that he said:

“Jim, you go to No. 4 vat. There is a pole sticking into it, and stir them up, break them up.”

The defendant furnished three wooden poles for use in this room, two of which were nine feet long and the third, about six feet, was in No. 4. It seems that a person could stand erect when using a nine-foot pole and reach the material in the bottom of the vat, but that it was more or less dangerous to" use" the shorter pole, because, in or

Defendant’s night foreman testified that he worked nights on vat No. 4, but that he never worked on it without a guard rail around it; that about six weeks before the accident to plaintiff, while he was on vat No. 4, he put the end of a nine-foot pole on the material at the bottom of the vat, when there was a strong kick against the end of the pole which caused him to lose his balance and fall against the guard rail around the tank; that there was a split or crack ten or twelve inches long on the top of the steam pipe in one corner of the vat, to which hé attributed the side pressure he had noticed; that he had experienced the same kick five or six times before the accident, under the same conditions that existed when plaintiff was injured. He reported the condition at this tank to the night superintendent, who promised to have the steam pipe repaired, but it had not been done at the time of the accident.

It is claimed that several things contributed to the plaintiff’s injury. The defective condition of the steam pipe permitted a greater pressure of steam to come in contact with, the material, keeping it in constant rapid motion; the pole was so short that it was impossible to operate it without stooping over the vat; and the absence of the guard rail.

[1] When several proximate causes contribute to an accident, and each is an efficient cause without the operation of which the accident would not have happened, it may be attributed to all or any of the causes. Ring v. City of Cohoes, 77 N. Y. 83 , 90, 33 Am. Rep. 574 ; Ehrgott v. Mayor, etc., of City of N. Y.; 96 N. Y. 264 , 48 Am. Rep. 622 ; Thompson v. Town of Bath, 142 App. Div. 331 , 126 N. Y. Supp. 1074 ; Sweet v. Perkins, 196 N. Y. 483 , 90 N. E. 50 .

[2,3] I think that the presumption arises that if the plaintiff had been provided with a pole of suitable length, or if the guard rail had been in place, the accident would not have happened. The dangers to which the plaintiff was exposed were not open and obvious, and

[4] It was for the jury to say whether the defendant was negligent in setting the plaintiff to work at the unguarded vat without warning or instruction, with a pole of the length of the one furnished him, with whatever danger there was of,its being deflected by the nature of the work or the condition of the vat and of his losing his balance thereby. In short, under the combined facts shown by the evidence, the plaintiff was entitled under the common law and statute to have his case submitted to the jury. O’Keefe v. Great Northern Elevator Co., 105 App. Div. 8 , 93 N.. Y. Supp. 407 ; Smith v. Manhattan R. Co., 112 App. Div. 202 , 98 N. Y. Supp. 1 ; Warren v. Post & McCord, 128 App. Div. 572 , 112 N. Y. Supp.- 960 . And the exceptions to the refusal of the learned trial court to submit these questions to the jury present error which requires a reversal of the judgment.

Judgment and order reversed and a new trial granted,. costs to abide the event. All concur.