Opinion
May, 1905.
Edgar T. Brackett and Henry W. Williams, for the appellant.
Edward M. Angell and Joseph A. Kellogg, for the respondent.
Concede that the defendant was negligent in that it did not furnish the plaintiff with a safe place in which to do the work required of him, and safe and proper implements with which to do it, very clearly the plaintiff had full knowledge of the dangerous situation, and of the whole risk he ran in doing what he was asked to do. In effect, it is a case where both employer and employee being present, and the work to be done, if done in the easiest and quickest manner, and with the means and in the situation furnished by the defendant, being work that required the taking of a great and dangerous risk, the employer suggests that it be taken and the employee unhesitatingly takes it. The plaintiff's counsel urges that the employee did not fully understand the risk, because he did not know whether enough cement would fall when stirred by the stick, to drive his hand down onto the screw. But he knew as much as the defendant did on that subject. Of course neither could tell just how much would fall, but both knew that the purpose of stirring it was to start it running, and both understood that they intended to have it run through the spout in quantities much larger than was needed to drive the plaintiff's hand down onto the screw; and it is apparent from the plaintiff's own testimony that he appreciated the fact that unless he got his hand away from under the cement before it began to run, as they hoped and expected it would, it would surely force his arm down onto the screw. Beyond all doubt the plaintiff understood that he must, and expected that he would, be able to withdraw his hand ahead of the falling cement; and he knowingly took the risk of doing so. He was familiar with the construction of the bin and spout and conveyor, and the construction and working of the worm, and the purpose of starting the running of the cement, and had been familiar with it for years. He, himself, on some occasions acted as foreman there. As to him, the risk in all its details was an obvious one, and unless there is some provision in the Employers' Liability Act (Laws of 1902, chap. 600) that has changed the rule, he is barred from a recovery, both upon the principle that the risk was one assumed by him, and also that his own negligence in taking the risk which the situation plainly indicated contributed to the injury. ( Drake v. Auburn City Ry. Co., 173 N.Y. 466; Maltbie v. Belden, 167 id. 307, 312.)
The provisions of section 3 of the Employers' Liability Act do not, in my opinion, prevent the application of this defense to this case. By that section it is substantially provided that it may no longer be presumed as a matter of law, viz., conclusively be presumed, that an employee has assumed all risks that are obvious and fully appreciated by him. Such a presumption now goes only to those that are in such section defined as "necessary" risks. So, also, hereafter, the fact that the employee continues in the service and performs the work, with the implements and in the manner required of him, after discovering or after he has been informed of the risk and danger of personal injury likely to occur therefrom, shall not "as a matter of law" be considered as an assumption of such risk by the employee, or as contributory negligence on his part. But the question whether the employee understood and assumed such risk, or was guilty of contributory negligence, by so continuing in the service, shall be one of fact, subject to the usual powers of the court, in a proper case, to set aside a verdict rendered contrary to the evidence.
In this case the risk was plain and obvious to the plaintiff, but it was one not necessarily existing. It resulted from a negligent omission on the defendant's part. The plaintiff's deliberate performance of the work, therefore, cannot be considered, as a matter of law, to be an assumption of such risk, nor as contributory negligence on his part. But whether the plaintiff understood and assumed the risk which the service then required from him, and whether it was a negligent act on his part to render it, the statute distinctly declares shall be a question of fact, and the verdict of a jury thereon may be reviewed by the court. That is the position which this appeal presents. The questions were submitted to the jury as questions of fact. The jury, against the plain weight of the evidence, and against the clear inferences which should be drawn from the whole situation, have found for the plaintiff; that is, that he had neither by waiver assumed the risk which he then incurred, nor was he thereby guilty of any negligence that contributed to his injury. This conclusion the trial judge has considered so clearly erroneous that he has vacated the verdict and allowed a new trial thereon. I am of the opinion that he was clearly right, and that his order should, therefore, be affirmed.
All concurred; CHASE and HOUGHTON, JJ., in result.
Order affirmed, with costs.