APPEAL by the defendant, the Phenix Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of October, 1910, upon the verdict of a jury for $5,000.
E. Clyde Sherwood, for the appellant.
Mitchell Wetherhorn, for the respondent.
The plaintiff, an employee of the defendant, was driving piles with a piledriver, a hammer weighing about 3,500 pounds, moving through a framework forty feet in height, and raised by a rope attached to a drum operated by a steam engine. He signaled the engineer to stop the machine and while the hammer was suspended about fifteen feet above the pile which he was driving, he undertook to put a rim upon it to keep it from splitting, when the rope broke and the hammer descended upon his hand crushing it. The plaintiff's evidence tended to show that the rope was of poor quality, the fibers being too short; that the same kind of rope had been furnished by the defendant for a period of three or four months; that a new rope would only last three or four days, whereas, if of good quality
it ought to last fifteen days; that the attention of the defendant's superintendent was called to the quality of the rope; that when a rope broke it was spliced, if possible, otherwise a new rope was obtained from the storehouse or from some other machine not in use. It is not claimed that it was possible to discover the quality of the rope from its outward appearance and the evidence of the defendant tends to show that it was purchased as of the best quality from reputable dealers. The particular rope that broke had only been in use about a day.
Upon the evidence the defendant was liable only in case it was chargeable with knowledge that the rope being furnished was insufficient for the use to which it was put. The plaintiff himself testified to the fact that the rope frequently broke and that he spliced them as long as it was possible to do so before getting a new one. It appears that there was a device, called the 'toggle,' attached to the top and bottom of the framework, upon which the hammer could rest when not in use.
At the close of the evidence the court excluded the notice, claimed to have been served pursuant to the Employers' Liability Law (Laws of 1902, chap. 600; now Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd.), and submitted the case to the jury as an action at common law. In the course of the charge the court said: 'So far as any risk is concerned which the plaintiff assumed in the premises, I charge you that such risk did not begin until the defendant had discharged its duty of exercising reasonable care and prudence in furnishing to the plaintiff necessary safe and suitable rope.' To that charge an exception was taken. While expressions may be found in the books to the effect that the servant assumes only such risks as arise after the master has discharged his duty ( Benzing v. Steinway & Sons, 101 N.Y. 547; McGovern v. C. V. R. R. Co., 123 id. 280), that is but another way of saying that the master is not liable if he discharges his duty. It is necessary to observe the distinction between the inherent risks of the business; i. e., those arising after the master has discharged his duty, and the obvious risks; i. e., those resulting from the master's negligence,
which the servant assumes by voluntarily continuing in a position of danger with full knowledge of it. A charge which limits the risks assumed by the servant to those which inhere in the service after the master has discharged his duty is manifestly erroneous, because it is well settled that the servant may assume risks arising from the master's negligence, even from the failure to discharge a statutory duty. ( Crown v. Orr, 140 N.Y. 450; Knisley v. Pratt, 148 id. 372; Rooney v. Brogan Construction Co., 194 id. 32; Milligan v. Clayville Knitting Co., 137 A.D. 383.) In this case the jury might have found that the plaintiff knew as much about the danger as the master did, and that he voluntarily put his hand on the pile knowing that the hammer was suspended above with nothing but a defective rope to hold it. The charge, excepted to, took that question from the jury, and the error was, therefore, pre-judicial.
The judgment should be reversed, with costs to the appellant ...