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Lofrano v. New York & Mountain Vernon Water Co.

8 N.Y.S. 717 Court N.Y. Gen. Term Decision date 1890-02-10 English

Delivered by Dykman, J.

Contents

Majority

p. 717
Lofrano v. New York & M. V. Water Co.
(Supreme Court, General Term, Second Department.
February 10, 1890.)

Headnote

1. Master and Servant—Dangerous Employment—Duty of Master.
A master is liable for personal injuries sustained by bis servant while warming a quantity of dynamite preparatory to its use, where it appears that the servant acted under the direction of the master’s foreman; that he bad no knowledge of the uses and dangers of dynamite, and professed none, and was not warned thereof ; and that he was not employed to perform such services.
2. Same—Contributory Negligence.
The servant cannot he charged with contributory negligence where he merely obeyed the orders of the foreman, and did no more than was necessary for their execution.
8. Same—Risks Assumed.
As the master failed to exercise proper care for his servant’s safety, and the danger was not open and apparent to the servant, he did not assume it as a risk of his. employment.
Appeal from circuit court, Westchester county.
p. 718
Action by Nicola Lofrano against the New York & Mount Vernon Water Company for personal injuries sustained by plaintiff while in defendant’s employ. Verdict for plaintiff, and from the judgment thereon, and an order denying a motion for a new trial, defendant appeals.
Argued before Barnard, P. J., and Pratt and Dykman, JJ.
Starr & Ruggles, (H. M. Ruggles and Isaac N. Mills, of counsel,) for appellant. Joseph S. Wood, for respondent.

Under the charge of the trial judge in this action, no verdict could be made for the plaintiff, unless the jury found that he was unskilled in the use of dynamite, and did not assume to understand its management, and to be able to conduct the operation of blasting in all its departments. The charge even contains this emphatic language: “If this plaintiff, although he may have been wholly ignorant of the risks of handling dynamite, told this company that he was capable, the law takes him at his word; and, whether he was ignorant or not, he cannot recover for an accident which happened in the course of tils employment.” The jury having rendered a verdict for the plaintiff, he is before us on this appeal, a man without experience in the use of dynamite, and without a knowledge of the dangers attending its use, and without a profession of such knowledge. In that state he was directed by the foreman of the defendant to warm a quantity of dynamite preparatory to -its use, and while in the performance of that duty some of the substance exploded, and caused the injury to the plaintiff for which he seeks compensation -in this action. ■ The plaintiff was not employed to perform the services he was directed to discharge on the occasion of his injury, and did not, therefore, assume the risks incident thereto, and such perils were not apparent; neither was any warning given to the plaintiff of the danger accompanying such service, and it was to him unknown. The defendant, therefore, violated the •duty it owed to the plaintiff by setting him in a dangerous place, at a perilous service, without warning or admonition or any kind, instead of providing him with a safe place and safe implements, as the law required; and as none of those duties could be delegated to the foreman, so as to exonerate the company, the defendant is liable for the act of the foreman. Pantzar v. Mining Co., 99 N. Y, 368 , 2 N. E. Rep. 24 .

The foregoing view admits no contribution of negligence by the plaintiff. He obeyed the orders of the foreman, and did no more than was necessary to carry them into execution. Upon the assumption of the safety of the service, he was justified in all that he did; and, as we have seen, if there was danger lurking around the service and incident thereto, he was entitled to warning, which he did not receive.

Neither can he be defeated because he assumed the risk of the service. As -the danger was not open and apparent to him with his knowledge, he assumed only the risks incident to the service after the defendant had used proper care and caution for his safety and preservation, and, as we have also •seen, the company failed in the performance of that duty which the law cast •upon them.

Many objections and exceptions are presented by the record, both to the -rulings and charge of the trial judge, but they disclose no error. The judgment and orders denying the motion for a new trial should be affirmed, with •costs.