Floettl v. Third Avenue Railroad

—This action was brought to recover damages for injuries sustained by the plaintiff, which injuries, it is alleged, resulted from the negligence of both the defendants. lie now appeals from judgment entered upon a dismissal of his complaint at the trial.

The Third Avenue Railroad Company is a corporation operating a line of street-railway cars, moved by cable power, in the city of Hew York, and the defendant the Jonson Engineering & Foundry Company is a manufacturing corporation engaged in the business of making and putting in place appliances ór apparatus to move cable cars, such as were used by the railroad company. On the 17th of March, 1894, the plaintiff was in the employment of the defendant the Jonson Company, and had been in such employment for some months preceding that date. On the day named, the Jonson Company, by its employés or operatives, was, as an independent contractor, doing certain work for the Third Avenue Railroad Company about and under its track, and this plaintiff was one of such operatives or hands engaged in doing some of that work, at a point in Park Row, in .the city of Hew York, opposite the Times Hewspaper Building. It appears that, at the place indicated, a trench or excavation had been dug under the bed of the easterly track of the railroad company, and that

As affecting the railroad company, the disposition of the cause made by the learned judge was right. There was no negligence whatever on the part of that company, or any of

But, Avith reference to the defendant, the Jonson Company, there Avas enough in the testimony to go to the jury on the plaintiff’s contention that the company did not furnish to the plaintiff that protection to which he was entitled, in Adexv of the assurance he had received from the foreman. This vieAv does not result, in this case, from the application of the rule that an employer is bound to furnish to his servant a safe place in Avhich to Avork. Where the danger is ltnoAvn to the employé, he has an opportunity to -decline the service. If, under ordinary circumstances, and with full knoAvledge of the danger, he enters upon that service, he takes the risk of his employment, precisely in the same Avay he would take the risk of operating dangerous machinery, knoxvn to him to be dangerous. Hickey v. Taafe, 105 N. Y. 26 ; 6 St. Rep. 406 ; Cahill v. Hilton, 106 N. Y. 512 ; 11 St. Rep. 26 ; Cullen v. Roofing Co., 114 N. Y. 45 ; 22 S. R. 298; Shields v. Railroad Co., 133 N. Y. 557 ; 44 S. R. 72. As Avas said in the case of McGovern v. Railroad Co., 123 N. Y. 287 , 33 S. R. 416 :

“ If the servant puts himself in the way of dangerous machinery, with knowledge of its character, or places himself in the way of bodies moving in their accustomed orbit Avith ir

That the place at which the plaintiff was put to work was one which might become dangerous is manifest, and the particular danger to which the plaintiff would be exposed was apprehended and anticipated by both the plaintiff and the person standing in the place of the master on the day and at the time the accident occurred. The testimony of the plaintiff and of the witness Wein is quite direct to the point of the reluctance of the plaintiff to enter into the trench, in view of the possibility of the cable being started and of the car running while he was working therein. It was known that, under such circumstances, that place would become dangerous, notwithstanding which the direction was given by the, foreman to the plaintiff to go into the trench, and that direction the plaintiff would not obey until he received an assurance that he would be protected from what he apprehended to be the danger of complying with it. Upon his expressing his fears and his reluctance, he received from the foreman that which was equivalent, under the circumstances, to an assurance that the conditions were or would be such that the apprehended peril would not occur. ITe was told that the work at the yoke must be completed by 5 o’clock and that cars would not run until 5 o’clock. In view of what was said between the plaintiff and the foreman, the only construction that can be given to the language of the foreman is that it was an assurance that the plaintiff would be exempt from the particular danger he apprehended, and from which it was obviously the duty of his employers to shield him. There is nothing in the testimony whiclicountervails this view. The plaintiff did, in further conversation, ask the question, “ What will I do in there if it does come % ” referring to the car; to which the foreman responded: “ The car will stop. Go down.” This was but a reiteration, in substance, of what was said before; and, although the words “ until 5 o’clock ” were omitted in this second assurance, the plaintiff was justified in understanding that this remark related to the hour, and that no cars would traverse the track where he was working until 5 o’clock, which, as before remarked, was the hour at which the work was to be completed. That the car which injured the plaintiff did stop at 20 minutes past 4,

We do not think this is a case in which it can be said that the plaintiff was coerced to enter the trench. He did not go into it in obedience to the command, but in reliance on the assurance given. Nor did he rely upon the better judgment of the master concerning the safety of the place in which he ivas work. His own evidence excludes that consideration. But he relied, and had the right to rely, upon the promise of his superior, who ivas in charge of the work, that the place would be made safe under the conditions in which he was induced to work in it. That- that was the assurance given, and binding upon the master, is quite clear in this case. It was not a mere promise or assertion or guaranty of a fellow servant. The nature of the work done, the relation of this foreman to that work, the control which he had over the Jonson Company’s servants employed thereon, all show, prima facie, at least, that this foreman was in a place of responsibility, directing work which required skilled labor of a peculiar kind, in and about an apparatus somewhat complicated in its structure. And so the foreman ivas representing the master in and about that kind of work, the superintendence and direction of whiclr, had the master been an individual, and not a corporation, might well have been assumed by the master himself. We think that there was an undertaking on the part of the Jonson Company that the cars would stop until 5 o’clock, and that the plaintiff ivas justified in relying upon it, and that the negligence of the Jonson Company was in making a statement, either untrue or not known to be true, and thereby inducing the plaintiff to enter the trench, or, having honestly made the statement, in not seeing to it that the car ivas not permitted to come over the trench before 5 o’clock, and while the plaintiff was at work therein.

It is contended on the part of the Jonson Company that the plaintiff had warning that the car was coming, but, instead of keeping still, he put his hand on the rail, and thus caused the injury. The evidence is entirely insufficient to show that the plaintiff received any such warning as would have enabled him, intermediate the giving of the alleged notice and the time at which the car reached the trench, to come out of that trench, reference being had to the peculiar manner in which a person was obliged to enter and come out of the excavation; and it certainly cannot be said that, upon the testimony as it stands, the plaintiff is responsible for his own injury by putting up his hands, which act was done instinctively, in consequence of the vibration of the cable near his head,—it not being shown that he had any reason whatever to think that the car, having then stopped, would proceed in its transit before he could relax his grasp and change his position.

All concur.