Opinion
March Term, 1901.
Thomas W. Burke and John J. Delany, for the appellant.
Herbert C. Smyth and Edwin A. Jones, for the respondent.
The plaintiff appeals from a judgment dismissing the complaint at the close of his case. The action is for negligence, and plaintiff would hold the defendant liable for negligence in construction and in maintenance of a bridge in its fireroom. There were twelve boilers in this room, placed in a row, numbered from 1 to 12, and connected by valves with the main steam pipe. The bridge of iron lattice work was suspended from the ceiling thirty feet above the floor and ran in front of the boilers. The platform of the bridge ended at some distance beyond boiler No. 4, but the handrail of the bridge ran beyond that end. Two ladders, placed at boilers 5 and 6, and at boilers 9 and 10 respectively, gave access from the floor to the bridge. The fireroom was lighted by windows, and, when necessary, by electricity. The plaintiff had been employed in that room for four years (three as a fireman and one as a water tender), and it was his duty, as occasion required, to connect or to disconnect, by the valves, the boilers and the main steam pipe. About five o'clock on the afternoon of January 29, 1899, there was an explosion at boiler 9. Plaintiff then on duty went up the ladder at boilers 4 and 5 to reach the valve. It worked with difficulty, the plaintiff was scalded, the room became dark from vapor, and the plaintiff then began to make his way along the platform on his hands and knees towards the ladder between boilers 4 and 5. He testifies: "I came along on my hands and knees, crept along trying to escape until I came to the end of the bridge, and there was a hole. I felt that I was falling." No other witness of the accident was called. The part of the platform from which it is alleged the plaintiff fell was never used by the plaintiff or by any of the employees, nor was there occasion to foresee that any one would go there for any purpose. The plaintiff testifies: "I never went past No. 5 boiler, never had any cause to; * * * didn't see any use for it. * * * It was not necessary to go on that platform to do any cutting off of valves beyond boiler 5." The construction of boilers 1 to 4 inclusive was different from that of the others, the valves of the former being reached without going upon the bridge. Plaintiff's witness Roarty testifies that the place where plaintiff fell was where the platform "was not used at all," and that the end thereof was about twelve feet distant from the top of the ladder, "where the men would get upon the platform." Even assuming that the entire bridge and its platform were used or were for use, the defendant had the right to construct and to maintain them in the manner in question, provided any danger to its employee was open and not due to a latent defect. ( De Forest v. Jewett, 88 N.Y. 264, and cases cited; Robbins v. Brownville Paper Co., 65 N.Y. Supp. 955, 962; S.C., 53 App. Div. 641, 644.) The plaintiff had been employed in that room for four years, he had seen the construction of the boilers and the bridge from the beginning. He testifies that from the floor of the room, one could see the entire platform perfectly apparent. He had occasion to use the bridge sometimes once a day, sometimes once a week, and his witness Roarty testifies that when one was on the platform the space was just as apparent to anybody "as the presence of the stenographer." I think that the plaintiff must fail for the reason that he took the risks which were known or which were obvious to persons of ordinary intelligence. ( De Forest v. Jewett, supra; Williams v. D., L. W.R.R. Co., 116 N.Y. 628; Crown v. Orr, 140 id. 450.) Boyle v. Degnon-McLean Construction Co. ( 47 App. Div. 311) is distinguishable. In that case it was held that a hole used for dumping coal in a trestle but seven feet distant from the place where the plaintiff worked and where there was loose planking about the hole, to be used as a covering, was a peril to which, without a light, the defendant could not expose its servant while he was working at night, and, even assuming that the plaintiff did see the hole in the light of the one day that he had worked for the defendant, it might fairly be presumed that he perceived its use and inferred that it might be covered in the night when not in use, and when he was called upon to work near it without any light or warning.
The judgment must be affirmed, with costs.
Judgment unanimously affirmed, with costs.