Lofrano v. New York & Mount Vernon Water Co. — 62 N.Y. Sup. Ct. 452

Majority

p. 452

NICOLA LOFRANO, Respondent, v. THE NEW YORK AND MOUNT VERNON WATER COMPANY, Appellant.

Headnote

Dangerous employment — when the master is Háble for an injury done to the servant.

In an action brought to recover damages resulting from the alleged negligence of the defendant the court charged the jury: “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 his employment.”

Held, that the charge could not be sustained, as under it no verdict could be given 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 foreman of the defendant directed the plaintiff to warm a quantity of dynamite preparatory to its use, and while in the performance of that duty he was injured by the explosion of the dynamite. The plaintiff was not employed to perform the services in the discharge of which he received this injury.

Held, that the defendant violated the duty it owed to the plaintiff by putting him in a dangerous place at a perilous service without warning.

That the plaintiff was justified in assuming the safety of the service which he was directed by the foreman to do.

That as the danger was not open and apparent to him, and within his knowledge, he could not be held to have assumed the risk attendant upon this service.

Appeal by tlie defendant from á judgment entered in the office of the clerk of the county of Westchester on the 10th day of June, 1889, after a trial at the Westchester County Circuit, before the court and a jury, by which a verdict was rendered m favor of the plaintiff for the sum of $7,000 ; and, also, from an order denying a motion made by the defendant for a new trial upon the minutes of the judge.

The action was brought to recover damages for injury to the person of the plaintiff alleged to have been caused by the negligence of the defendant.

The complaint alleged that the plaintiff was employed by.the defendant as a day laborer to dig out a reservoir, and aid in the construction of a dam for the defendant at or near Pelhamville, in the county of Westchester; that the defendant negligently provided and used frozen dynamite cartridges and unsafe and improper means for softening the same; that the plaintiff was ordered and

p. 453

directed by tbe defendant to place said frozen dynamite cartridges before the fire in tbe open air, and warm one side first and then to turn them around and warm tbe other side, and that in doing so, without any negligence or carelessness on bis part, tbe cartridges exploded, to tbe serious injury of tbe plaintiff.

Joseph S. Wood, for tbe respondent.

Isaac W. Mills, for tbe appellant.

Under the charge of tbe trial judge in this action no verdict could be made for tbe plaintiff unless tbe jury found that be was unskilled in tbe use of dynamite and did not assume to understand its management, and to be able to conduct tbe operation of blasting in all its departments. Tbe charge even contains this emphatic language: “ If this plaintiff, although be may have been wholly ignorant of the risks of handling dynamite, told this company that be was capable, tbe law takes him at bis word, and whether be was ignorant or not, be cannot recover for an accident which happened in tbe course of bis employment.”

Tbe jury having rendered a verdict for tbe plaintiff, be is before us on this appeal, a man without experience in tbe use of dynamite, and without a knowledge of tbe dangers attending its use, and without a profession of such knowledge.

In that state be was directed by tbe foreman of tbe defendant to warm a quantity of dynamite preparatory to its use, and while in tbe performance of that duty some of tbe substance exploded and caused tbe injury to the plaintiff for which be seeks compensation in this action.

The plaintiff was not employed to perform tbe services be was directed to discharge on tbe occasion of bis injury, and did not, therefore, assume tbe risks incident thereto, and such perils were not apparent; neither was any warning given to tbe plaintiff of tbe dangers accompanying such service, and it was to him unknown.

Tbe defendant, therefore, violated tbe duty it owed to tbe plaintiff by setting him in a dangerous place at a perilous service, without warning or admonition of any kind, instead of providing him with a safe place and safe implements as tbe law required; and as none of those duties could be delegated to tbe foreman, so as to exonerate

p. 454

the company, the defendant is liable for the act of the foreman. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y., 368 .)

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 and within his knowledge, he assumed only the risks incident to the service after the defendant has 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.

Pratt, J., concurred; Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.