Ehrenfried v. Lackawanna Iron & Steel Co.

The facts are hardly in dispute, but, in so far as they are, a nonsuit having been granted," the plaintiff is entitled to the inferences most favorable to her which may be legitimately drawn therefrom. Veazey v. Allen, 173 N. Y. 359 -367, 66 N. E. 103 .

The defendant, in connection with its business of manufacturing steel, was engaged in operating a foundry in which was constructed a cupola or furnace for the purpose of melting iron. The cupola was a circular structure, lined with fire brick, 48 inches in diameter, and extended from within a few feet of the foundry floor up through a charging room or scaffold, so called, and through the roof of the

The deceased entered the service of the defendant in January, 1902, as a common laborer in the foundry. A month after he was put to work wheeling iron, coke, and limestone to be used in the cupola into the charging room. He continued at that work until March 21, 1902, when he was made cupola tender, and.was put in charge of the cupola. Pie worked in such' capacity from that day until his death, nearly two months, personally cleaning out and repairing the cupola each morning, while the iron and other materials were being taken into the charging room under his direction, and, after he had put the cupola in proper condition, and started a fire in the bottom1, either putting the iron and other materials through the door into the cupola himself, or causing it to be so put in by others under his supervision, and exactly as directed by him.

On the 23d day of March, 1902, after plaintiff’s intestate became ■cupola tender, the cupola was lowered. Prior to that time the bottom of the cupola door was 18 inches above the level of the floor of the charging room. Plaintiff’s intestate assisted in making the change; knew exactly what the conditions were after such change was made; every feature of the situation was open, notorious, and ■visible; and for nearly two months after the change was made the ■cupola was used and operated under the direction and. supervision -of the deceased. During all that time he knew how the iron and

The evidence wholly fails to establish that the defendant was guilty of negligence which caused the injury complained of, and is not sufficient to raise a question of fact for the jury in that regard. In what respect did the defendant neglect to perform any legal duty imposed upon it? It must be conceded that it had the right to operate a cupola with a door through which the necessary materials might be put into it, the .bottom of which was only 1^2 inches above the level of the floor upon which such materials were deposited. The jury cannot be permitted to say that the defendant was negligent because the bottom of such door was not raised 10, 20, or 30 inches above the level of the floor.

It is said that, with a construction such as existed here, the defendant was guilty of negligence because it did not make and promulgate proper rules governing the conduct of its employes, and such as would have protected an employé working in the bottom of the cupola against the danger of being struck by pieces of iron rolling from the floor into the cupola through the door. Such rule, if promulgated, would have been nothing more or less than a warning to the employés working in the charging room to be careful not to allow pieces of iron to drop into the cupola when they knew or had reason to believe another employé was working at the bottom. It would state, in effect, that no employé must do an act which necessarily and obviously will result in injury to another employé. We think there is no rule of law which requires a master to make and promulgate a rule of that character, but if such warning, or any other, was necessary for the guidance of the employés working in the charging room, it was the duty of the deceased to have given it. Such employés" were working under his direction. He was their boss, and controlled their actions, and he fully understood all the dangers to be apprehended. If a foreman of a gang of men engaged in digging a trench assumes to go into it, and is struck by a falling stone permitted or caused to fall by one of the men working above, the master is not liable because he failed to make rules warning the employés of the danger of permitting a stone to fall under such circumstances, or because he failed to make a rule prohibiting any employé from permitting such occurrence.

In the case at bar the accident resulted because of the negligence of a co-employé—of the man from whose wheelbarrow the piece of

The case, however, was disposed of by the learned trial court on-.the broad ground that the deceased assumed the risk of the accident which befell him, and therefore that the plaintiff was not entitled to recover. As already pointed out, plaintiff’s intestate knew for at least three months previous to the accident the exact condition of the cupola; precisely how it was operated; the manner of-doing the work by the other employés. In fact, as is shown, for more than a month previous to the accident it was all done either by him personally, or under his direction and supervision. Under those circumstances, we think it clear that he assumed .the risk, as was held by the learned trial court.

The only suggestion made in answer to this proposition by the learned counsel for the respondent is that such defense was not pleaded, and that therefore, under the decision in Dowd v. N. Y., O. & W. Ry. Co., 170 N. Y. 468 , 63 N. E. 541 , was not available to the defendant. All the facts tending to establish the defense of assumption of risk were proven by the plaintiff without objection. At the close of the plaintiff’s case a motion for a nonsuit was made upon the ground, among others, that all the “conditions there were perfectly plain and obvious to the deceased in doing the work that he did.” The motion was resisted upon- the ground that the defense of assumption of risk was not pleaded in the answer. After a full statement of the evidence bearing upon that question, and of the law applicable thereto, the learned trial court granted the nonsuit, stating at the close that:

“He [the plaintiff’s intestate] knew all the conditions which surrounded •him. He continued in the employ. He worked there days and weeks, and finally received the injury which resulted in his death. My notion is that the risk was assumed by this man, and that there can be no recovery in this action.”

We think the Dowd Case, supra, is not authority for the proposition that, where all the evidence which establishes the assumption of risk is introduced by the plaintiff, such defense is not available to-the defendant, even though not pleaded. The failure of the trial court to direct that the pleadings be amended to conform tó the evidence introduced without objection, even if that should have been done, in no manner injured the plaintiff. It follows that the judgment and order appealed from should be affirmed, with costs.

Judgment and order affirmed with costs.

I concur in the opinion of McLENNAN, P. J., for affirmance, but desire to say in addition: It is not necessary to plead “assumed risk.” During all the years-that negligence actions have been brought by employés and litigated,, it has never been held to be essential, and such a rule should not now"

STOVER, J., concurs.

SPRING and HISCOCK, JJ., dissent upon the ground that the reasoning in Dowd v. N. Y., O. & W. Ry. Co. 170 N. Y. 468 , 63 N. E. 541 , leads to the rule that the assumption of risk is an affirmative defense, which must be pleaded, and that, if this is the correct rule, compliance therewith is not obviated because the plaintiff, in sustaining other issues, has presented evidence which defendant might utilize to sustain said defense; the objection being made in due .time and form that the same had not been pleaded.