APPEAL by the defendant, Henry L. Hanlien, 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 20th day of July, 1911, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 18th day of July, 1911, denying the defendant's motion for a new trial made upon the minutes.
E. Clyde Sherwood [Allen E. Brosmith and William B. Davis with him on the brief], for the appellant.
William A. Reynolds, for the respondent.
The action is brought to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant on the 19th day of July, 1909, in a stoneyard on premises known as 400-417 One Hundred and First street. The liability is predicated wholly upon the common law. It is charged that the defendant failed to furnish the plaintiff a safe place in which to perform his duties and a sufficient number of fellow-servants, and operated a derrick negligently constructed, and failed to promulgate and enforce necessary rules for the safety of the plaintiff. The answer put in issue the allegations of the complaint charging the defendant with negligence, and further pleaded that the plaintiff, with full knowledge of the conditions, assumed the risk of injury from the cause which resulted in the injuries of which he complains.
The plaintiff had been employed in the yard for a period of
about thirteen years, during which time the conditions remained substantially the same. His duties were not confined to any particular work, but he did any work required in the yard, which was used for cutting and dressing blocks of stone weighing from ten to sixteen tons. There was a boom derrick operated by electricity in the center of the yard, and all the blocks of stone in the rough were brought in and deposited near it and left there until it became necessary to move them to other points to be sawed, cut or dressed. The base of the mast of the derrick and the electric controller and levers and drum were inclosed in a small octagonal building, with a door on either side and three windows. The derrick was operated by an engineer who stood within the inclosure. The floor of this octagonal building was four and one-half feet above the ground, and at each door there were three steps leading from the ground into the building. Each door formed one of the octagonal sides of the building, and three of the other sides were solid, and the windows were in the remaining three. About on a level with the floor, and at the angle of each door and the next octagonal side on the right-hand side of the door as one entered, a piece of timber projected out beyond the angles of the building eleven inches. The other dimensions are not given, but these projections are described as knobs, and at the outer end of each a brace running from it to the boom was fastened. A block of stone weighing about fourteen tons had been brought to the yard and left on the ground, with the end towards the engine house, and quite near to it. The plaintiff and a fellow-employee were directed by the foreman to have this block of stone moved to another place in the yard, and after they had passed a chain around the stone and while plaintiff was engaged in removing some lumber so that the stone would swing clear when hoisted, the derrick revolved a distance of a quarter of a circle and pinned him between the stone and one of these knobs, injuring him severely. The engine house revolved with the arm of the derrick, and made a complete revolution in twenty seconds, and thus from the time it started until it came in contact with the plaintiff only about five seconds elapsed. No signal was given that the derrick would be revolved, and, owing to the other noises in the yard, the
plaintiff did not hear it moving. According to the testimony of the plaintiff the custom was, for men desiring to have the derrick swung to a particular place, to give the engineer a signal when they were ready; and the evidence shows that neither the plaintiff nor his fellow-workman signaled the engineer to move it on this occasion, and that the engineer moved it on his own responsibility. The engineer testified that when he saw the chainers, as they are called, preparing to have a stone moved, it was customary for him to swing the arm of the derrick around to move the same without any signal. The construction of the engine house was such that, from the position occupied by the engineer in the performance of his duty, he was unable to see the plaintiff at the time of the accident or to discover that the plaintiff was in a position of danger.
The court submitted the case to the jury upon the theory that it was a question of fact for the jury to determine whether the defendant should have made rules regulating the duties of his employees, or requiring the giving of notice or warning to those exposed to danger of injury from the derrick, and in that connection the court instructed the jury that if the plaintiff knew the danger he was quite as negligent in placing himself in a position of danger as was his employer, but left it to the jury to determine whether the plaintiff knew and appreciated the danger. The jury were further instructed that the engineer was a coservant, and there could be no recovery for any negligence on his part, but that if the engineer and the defendant were both negligent, then there might be a recovery. On the question of assumption of risk, however, the court instructed the jury, in effect, that no risk is assumed by the servant until the master has performed the duties devolving upon him. The court also, at the request of the attorney for the plaintiff, instructed the jury that 'it was an absolute duty on the part of the defendant to furnish the plaintiff with a safe place to work and he cannot delegate that duty; ' and counsel for the defendant duly excepted.
This was the last instruction given by the court. I am of opinion that it was erroneous, as applied to the facts of this case. The place in which ...