Baxter v. Richardson — 54 N.Y. Super. Ct. 230

Majority

p. 230

ROBERT BAXTER, Appellant, v. GEORGE C. RICHARDSON et al., Respondents.

Headnote

Contributory negligence—anticipation of danger a necessary element.

An act although contributing to the injury will not constitute contributory negligence, unless the facts show that as matter of law, the party doing the act ought to have anticipated danger therefrom.

Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

Decided February 14, 1887.

Appeal from judgment dismissing complaint, entered upon direction of the judge.

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The facts appear in the opinion.

F. P. Trautman, attorney, and Edward C. James of counsel for appellant, on the questions considered in the opinions argued:

I.—On a motion for a nonsuit all disputed facts are to be decided in favor of the plaintiff, and all presumptions and inferences, which plaintiff had a right to ask from the jury are to be conceded to him. Meyers v. Dixon, How. Pr. 48 ; 35 N. Y. Super. 390; Fairfax v. Railroad Co., 40 N. Y. Super. 128; Cook v. Railroad Co., 1 Abb. App. Dec. 432.

II. As to contributory negligence—Munroe v. Third Ave. R. R. Co., 50 Sup’r Ct. 114; Stackus v. Railroad Co., 79 N. Y. 464 ; Wendell v. Railroad Co., 91 N. Y. 420 ; Thurber v. Railroad Co., 60 N. Y. 326 ; Hogan v. Henderson, 2 N. Y. S. Reporter, 119 ; Whitaker’s Smith on Negligence, p. 419; Daniel v. Met. Ry. Co., L. R. 5 Eng. & W. App., 45; Ernest v. Hudson R. R. Co., 35 N. Y. 9 ; Newson v. N. Y. &c., Ry. Co., 29 N. Y. 383 .

IH. The rule which exempts a master from liability to his servant for an injury caused by the negligence of a co-servant, has no application to this case.

A contractor or jobber called in to do a special job is not in any legal sense a fellow servant with those in the service of the employer engaged in his business. They are not engaged in the same common pursuit. Young v. Railroad Co., 30 Barbour, 229; Newson v. Steamship Co., 57 N. Y. 108 ; Hexamer v. Webb, 101 N. Y. 377 ; King v. Railroad Co., 66 N. Y. 181 , 184; Donalson v. Railroad Co., 18 Iowa, 280 ; O’Donnell v. Railroad Co., 59 Pa. St., 239 .

It was, therefore, error to dismiss the complaint on this ground.

IV. The defendants, in this case, owed the duty to plaintiff to furnish him a safe place in which to do his work, and to maintain it in safety while he was at work. Newson v. Railroad Co., 29 N. Y. 383 . (See 35 N. Y. 44 -5.) Coughtry v. Globe Woolen Co., 56 N. Y. 124 ;

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Devlin v. Smith, 89 N. Y. 471 , 477; Pontzar v, Mining Co., 99 N. Y. 368 ; Lanmore v. Iron Co., 101 N. Y. 391 ; Ackert v. Lansing, 48 How. Pr., 374 ; 59 N. Y. 646 ; Sands v. Edgar, 59 N. Y. 28 ; Leary v. Woodruff, 4 Hun, 99 ; affirmed 76 N. Y. 117 ; Barber v. Abendroth, 102 N. Y. 406 ; Newall v. Bartlett, Superior Court; Hogan v. Hardensen, 2 N. Y. State Rep. 119.

The rule is that whoever invites another upon his premises to do a job for him is bound to use reasonable care to see to it that he is exposed to no unnecessary dangers while engaged in such work. Scott v. London Dock Co. (3 H. & C. 596); Lyons v. Rosenthal, ( 11 Hun, 46 ); Norris v. Kohler ( 41 N. Y. 42 ); Roberts v. Johnson, ( 58 N. Y., 613 ); Simpson v. Omnibus Co. (L. R. 8 C. P. 390 ; Stokes v. Saltanstall (13 Peters, 181); Toledo, &c., R. Co. v. Baggs, ( 85 Ill. 80 ); Wall v. Livezay, ( 6 Colo., 465 ); Bryce v. C. Stage Co. ( 25 Cal., 460 ); McKinny v. McNeil, ( 1 McLean, 540 ), and Christie v. Griggs, (2 Campb., 79); Seyboldt v. Erie R’y Co., ( 95 N. Y., 562 -9); Edgerton v. N. Y. &c. R. Co., ( 39 N. Y., 227 ); Curtis v. R. &. S. R. Co., ( 18 N. Y., 534 ); Pittsburgh R’y Co. v. Williams, ( 74 Ind., 462 ); George v. St. Louis R’y Co., ( 34 Ark. 613 ; Dawson v. M. S. &c. R’y Co., (5 Law Times, 682); Bird v. G. N. R’y Co., (28 L. J., Ex. 3); N, O. R. Co. v. Allbritton, ( 38 Miss. 242 ); Iron R’y Co. v. Mowery, ( 36 O. S., 418 ; Skinner v. R’y Co., (5 Exch., 787); Carpue v. R’y Co., (5 Q. B. 751); Caldwell v. N. J. Steamboat Co., ( 47 N. Y., 282 , 291); The Reliance, ( 4 Woods C. C. 420 ); Robinson v. N. Y. C. R. Co., ( 20 Blatchf. C. C. 338 ); Mullen v. St. John, ( 57 N. Y. 567 ); Vincent v. Cook, (6 Th. & C., 562); and Murray v. McShane, (52 Maryland, 212); Clare v. City National Bank, (1 Sweeney, 539); Cummings v. Nat. Furnace Co. ( 60 Wis., 603 ); Kaples v. Orth, ( 61 Wis., 531 ); M. & O. Packet Co. v. McCool, ( 83 Ind., 392 ); Russell Mfg. Co. v. N. H. Steamboat Co., ( 50 N. Y., 121 -7); Gerlach v. Edelmeyer, (47 Superior Court, 292), affirmed, 88 N. Y. 645 .

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Francis Reed, attorney, and James M. Smith of counsel for respondents, cited :

Reardon v. Consolidated Card Co., (51 Superior Court, R. 141); Johnas v. Syracuse and Binghamton R. R. Co., 98 N. Y. 205 ; Wilds v. Hudson River R. R., 54 N. Y. 432 ; Cordell v. N. Y. C. R. R. Co., 75 N. Y. 332 ; Gibson v. E. R. Co., 75 N. Y. 454 ; Johnson v. Hudson River R. R., 20 N. Y., 65 ; 23 Federal Reporter, 671.

The action was for damages from the negligence of defendants.

The plaintiff had been employed by defendants to do some carpenter work near an • elevator, which was in the use and possession of defendants. For a purpose connected with that work, the plaintiff stood upon the platform of the elevator, and to “ steady himself ” as he testified, he took hold with his hand of a chain which, with other chains, supported the elevator. This chain passed around an iron pulley. When he was thus standing, the elevator began to rise and plaintiff’s hand, while on the chain which he had grasjied, was drawn against the pulley and was injured.

On the trial, the court dismissed the complaint.

The learned counsel for respondents argues that the judgment should be affirmed upon two grounds.

The first is, that on the whole evidence, it appears that the plaintiff himself, started the elevator. The evidence on this point would have justified the jury in finding that the plaintiff was not the cause of the elevator starting, although on the other hand, a verdict to the contrary might be sustained. The jury was the judge of what was the cause of the elevator moving.

The second ground is, that the plaintiff was negligent in taking hold of the chain. There is no doubt that this act contributed to the result, of the hand being hurt. It would only be a negligent act, upon the assumption that the plaintiff ought to have anticipated the likelihood or possibility of the elevator starting and endangering the

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hand. There are no facts to show that the plaintiff, as matter of law, should have anticipated the danger. This matter was also for the jury.

Judgment reversed, and new trial ordered with costs to abide the event.

Freedman, J. concurred.

The elevator on which the accident happened was under the control of the defendants or their agents. There is no evidence that the elevator was out of order or that it would move unless some one started it.

There was evidence from which the jury could find that the plaintiff did not start the elevator, and on the testimony it would be a question for them to say whether the elevator moved by reason of any negligence of the defendants or their agents.

The plaintiff was lawfully upon the premises and when the owner of lands in the prosecution of his own purposes or business, invites another, either expressly or impliedly, to come upon his premises, he cannot with impunity expose him to unreasonable or concealed dangers ; Larmore v. Crown Point Iron Co., 101 N. Y., 395 .

Plaintiff came to work on this elevator by invitation of the defendants. While there, he took the ordinary risks incident to the work he was sent to do; but the defendants were bound not to expose him to unreasonable danger which could not be foreseen, and which the exercise of ordinary care on the part of the defendants or their agents or servants would have prevented.

If then, plaintiff was exposed to such danger by reason of the negligence of the defendants or their servants, and there was no negligence .on his part, and he was injured, I think the defendants are liable.

It was a question therefore for the jury to say whether or not the defendants or their agents negligently started the elevator.

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I concur therefore, that the judgment should be reversed.

Cases cited

Stackus v. New York Central & Hudson River Railroad 79 N. Y. 464 N.Y. 1880-01-13 p. 231
Wendell v. New York Central & Hudson River Railroad 91 N. Y. 420 N.Y. 1883-03-06 p. 231
Thurber v. Harlem Bridge, Morrisania & Fordham Railroad 60 N. Y. 326 N.Y. 1875-04-06 p. 231
Ernst v. Hudson River Railroad 35 N. Y. 9 N.Y. p. 231
Newson v. New York Central Railroad 29 N. Y. 383 N.Y. p. 231
Svenson v. Atlantic Mail Steamship Co. 57 N. Y. 108 N.Y. Comm'n App. p. 231
Hexamer v. Webb 101 N. Y. 377 N.Y. 1886-02-09 p. 231
King v. New York Central & Hudson River Railroad 66 N. Y. 181 N.Y. 1876-05-23 at 184 p. 231
Coughtry v. The Globe Woolen Company 56 N. Y. 124 N.Y. 1874-03-24 p. 231
Pantzar v. Tilly Foster Iron Mining Co. 99 N. Y. 368 N.Y. 1885-06-09 p. 232
Larmore v. Crown Point Iron Co. 101 N. Y. 391 N.Y. 1886-02-09 p. 232
Swords v. Edgar 59 N. Y. 28 N.Y. 1874-11-17 p. 232
Barber v. Abendroth Bros. 102 N. Y. 406 N.Y. 1886-06-01 p. 232
Norris v. Kohler 41 N. Y. 42 N.Y. 1869-09-23 p. 232
Mullen v. St. John 57 N. Y. 567 N.Y. Comm'n App. p. 232
Lawrence v. American National Bank 54 N. Y. 432 N.Y. Comm'n App. p. 233
Hurd v. Cook 75 N. Y. 454 N.Y. 1878-12-10 p. 233