Opinion
June 8, 1906.
Albert G. McDonald, for the appellant.
Lewis Freedman [ Samuel Walker with him on the brief], for the respondent.
This is a master and servant case. The plaintiff's work required her to be within from four feet to twenty feet to a chute through which balls of wool were dropped from the floor above. The chute consisted of upright iron pipes, with spaces between not sufficient, however, to permit the escape of the balls. The dimensions of the chute were twenty-six inches by fourteen inches. At its opening on the upper floor it had a flange projecting six inches above the floor, about which fitted a metal cover which was removed when the balls were dropped down, and then replaced. A short distance above the lower floor the chute was entirely inclosed for the space of a few inches by a band for the purpose of preventing any one near the chute getting his arm within the chute and subjecting it to the danger of being hit by the descending balls. Upon the occasion of the accident the cover had been removed for the purpose of dropping the balls down and had been left on the floor by the side of the chute. A servant of the defendant, who had no duty to perform in connection with the chute, observing that the cover was off, undertook to put it on and in doing so dropped it down the chute, and in falling it struck the band referred to above, bounded through the space between the iron pipes, hit the plaintiff on the head and inflicted the injuries for which she has recovered.
It is difficult to discover any theory which will support the judgment. This chute was a simple device entirely sufficient for the purpose for which it was intended. The injuries were caused by the carelessness of a fellow-servant and we need not discuss the proposition that the defendant was under no liability for, nor bound to anticipate or guard against such negligence, and no other cause is suggested which the master in the exercise of due prudence was bound to anticipate as likely to produce such a result, and it is elementary that the master is only liable for consequences which he should anticipate. ( Hartman v. Clarke, 104 App. Div. 62, and cases cited.) It is claimed, however, by the plaintiff that a nonsuit was properly denied, because of the testimony of the plaintiff which I quote, to wit: "Three or four days before I was hurt I heard the cover fall quite often. Q. Did you speak to anybody about it? A. Yes, sir. I spoke to Mr. Andy Lee about it, the superintendent. I says, `Mr. Lee, I am kind of afraid to work under that chute, afraid something will fall in some day and hit me;' and he says, `Never mind, that is all right. I will have hinges put on.'" Evidently the plaintiff had in mind the danger of something besides the cover falling, but it does not appear that there was anything about the mouth of the chute likely to fall in, and even if there was, putting hinges on the cover would not prevent if the mouth was open, and it is not suggested that anything would cause the cover to fall in, constructed as this opening was, except the thing which actually caused it to fall, to wit, the carelessness of some person in removing it or putting it on, and this the master was not bound to guard against. The negligence of the master complained of is its failure to furnish a safe place, but the place was perfectly safe except for the carelessness of fellow-servants, and the master does not fail in his duty when the place becomes dangerous only by reason of such carelessness. ( Koszlowski v. American Locomotive Co., 96 App. Div. 40, and cases cited; Earle v. Clyde Steamship Co., 103 id. 21.)
It follows, therefore, that the motion to dismiss at the close of the evidence should have been granted, and the judgment and order must be reversed and a new trial granted, costs to abide the event.
HIRSCHBERG, P.J., WOODWARD, JENKS and HOOKER, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.