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Bellegarde v. Union Bag & Paper Co.

83 N.Y.S. 925 Court N.Y. Sup. Ct. English

Delivered by JOHN M. KELLOGG, J.

Contents

Majority

p. 925
(41 Misc. Rep. 106.)
BELLEGARDE v. UNION BAG & PAPER CO.
(Supreme Court, Trial Term, Washington County.
June, 1903.)

Headnote

Master and Servant — Injuries to Employé — Riohts on Master’s Prem ises — Invitation—Employers’ Liability Act — Construction.
Employers’ Liability Act (Laws 1902, p. 1749, c. 600) § 2, declares that an employé injured by the negligence of his employer’s superintendent or acting superintendent shall have the same right of compensation and remedies against the employer as if the employé had not been an employé. Held, that such section was intended merely to prevent the negligence of the superintendent from being imputed to the employé, and hence, where plaintiff in an action for injuries thereunder was in fact an employé, he could not be treated as a trespasser on his employer’s premises, and it was proper for the court to charge that he was on the premises by his employer’s invitation.
Action by John Bellegarde against the Union Bag & Paper Company. A judgment was rendered in favor of plaintiff, and defendant moves for a new trial on the minutes.
Motion denied.
T. F. Hamilton, for plaintiff.
Edgar T. Brackett, for defendant.

The plaintiff was an employé of the defendant, engaged in assisting in the construction of an addition to the defendant’s storehouse at Ballston Spa; and he and another, under the direction of one Gregg, as foreman, by a gin or shears, were lifting timber from the ground into an upper story. The gin was unsupported in front, and when the timber was lifted up to the building, and was being moved back into the building by means of a “dolly” or roller passing between the legs of the gin, the gin fell back into the building, and hit and injured the plaintiff. Sufficient ropes were furnished by the defendant to properly stay the gin, but it was deemed unnecessary by the foreman to secure it otherwise.

It was practically assumed upon the trial that no recovery could be liad in this case, except under the employers’ liability act, and the notice provided by that act was served. The jury brought in a verdict for the plaintiff for $i,coo. Upon this motion to set aside said verdict, and for a new trial upon the minutes of the court, it is urged that the court erred in instructing the jury that the plaintiff was to be deemed upon the premises of the defendant by its invitation. The language of the statute is peculiar, and there is some reason for saying that, as it provides the employé shall have the same remedies against the employer “as if the employé had not been an employé of nor in the service of the employer, nor engaged in his work,” it has placed him In the position of a stranger, and as upon the premises without invitation. If that were the proper construction, the act does not benefit the employé. Its declared object is “to extend and regulate the liability of employers,” and section 5 provides that every existing right of action for negligence is continued, and nothing in the act shall be construed as limiting any such right of action. As a matter of fact, the plaintiff was upon the premises by the invitation of the master, and was his employé, engaged in his business for the mutual advantage of the master and himself. The statute requires, for the better protec

p. 926
tian of the employé, that we shall overlook the fact that he is an era— ployé, or in the master’s service or engaged in his work, so that the-negligence of a superintendent shall not be imputed to him as that of a co-servant; but it does not purport to change, nor can it change,, the fact that he is not upon the premises as a sightseer, an interloper, or á trespasser, but is there for the defendant, and at his request. It would be too technical a construction of the statute for the court to turn the plaintiff into a trespasser or an interloper when he is upon the-premises for a legitimate and proper purpose, and for the benefit of the-defendant. The motion to set aside the verdict and for a new trial is-therefore denied. Sixty days’ additional time is given in which to make a case, if an appeal is seasonably taken.

Motion denied.