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Kern v. Welz & Zerweck

Supreme Court of New York, Appellate Division

June 21, 1912

JACOB KERN, Respondent,
v.
WELZ AND ZERWECK, Appellant.

APPEAL by the defendant, Welz and Zerweck, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of January, 1912, upon the verdict of a jury for $1,000, and also from an order entered in said clerk's office on the 11th day

Page 433

of January, 1912, denying the defendant's motion for a new trial made upon the minutes.

COUNSEL

Edward J. Redington [Amos H. Stephens, with him on the brief], for the appellant.

Ralph G. Barclay [Martin P. Lynch with him on the brief], for the respondent.

WOODWARD, J.:

The plaintiff on the 24th day of November, 1909, was employed by the defendant, a brewing company, as a driver of a team engaged in the delivery of beer. He had been employed in a like capacity for a term of about two years, and under identically the same conditions, so far as we are able to discover. Upon the defendant's premises was a separate room or building known as the washroom. This room was used primarily for washing the empty beer kegs returned from customers, and the floor of this room appears to have been of asphalt, though the plaintiff refers to it as being of cement, and we gather from the evidence that the washing out of the beer kegs resulted in the water flowing over this floor and out through a hole in the same about twelve inches square, leading to a drain underneath the floor. In one corner of this room, and opposite the main door, was a slightly raised platform of several planks, and above this was a blackboard, on which the various drivers wrote out the orders for beer which they had received from the customers for the subsequent deliveries. Near this blackboard was a tap or faucet, from which the drivers and other employees drew what beer they desired to drink while on duty. Just outside of this washroom the drivers loaded and unloaded their wagons. On the day above mentioned the plaintiff brought in a load of empty kegs and entered this washroom for the purpose of placing his orders upon the blackboard, and in passing from the door to the platform under the blackboard he slipped upon the wet floor, his foot passed into the drain hole in the floor, and he sustained injuries for which the jury has awarded a verdict of $1,000. The case was submitted to the jury on the theory that it was an action coming within the Employers' Liability Act, and the learned trial

Page 434

court has refused to set aside the verdict as being against the weight of evidence. The defendant appeals from the judgment and from the order denying a new trial.

This judgment ought not to stand for several reasons, one of them being that the cause of action pleaded has not been proved. The complaint alleges that 'while plaintiff was in the performance of his duties as said employee of said defendant, and while he was passing through the brewery aforesaid, exercising all due care and prudence, owing to the carelessness and negligence of said defendant in allowing the floor of said brewery to be and remain in a slippery condition, and the failure of said defendant to repair a large hole located alongside of a drain in the floor of said brewery, plaintiff slipped and fell into the said hole, and sustained severe injuries to his head, body and limbs,' etc. Upon the trial the plaintiff testified in detail as to the construction of the washroom and its arrangement, and it appeared that there was no 'large hole located alongside of a drain in the floor of said brewery,' which had not been repaired. On the contrary, it appeared that the floor was constructed for the very purpose of being flooded in the washing of the beer kegs, and that the floor slightly sloped toward a drainage basin or hole, and no one suggests the slightest defect, or any repair which might have been made. Indeed it is practically conceded on the part of the respondent that this room was adapted to the purposes of a washroom, and that the men engaged in the washing of the barrels might be properly deemed to have accepted the risks of the situation, but it is urged that the driver of a delivery wagon, who was called upon to enter this room and to pass near this drainage hole, was entitled to a different construction, though just what it should have been is not suggested, nor is there any evidence that any other brewer had ever made any special provision for those incidentally in the washroom. Upon cross-examination the plaintiff admitted that he claimed that he slipped into the drain, as distinguished from a hole alongside of such drain, which had not been repaired, and defendant's counsel moved to strike out the testimony as not in accordance with the pleadings. This motion was denied, and an exception

Page 435

taken, and while this is not urged directly upon this appeal, it is a circumstance which may fairly be considered, for it is still the law that the plaintiff must recover, if at all, upon the issues which he has tendered.

The whole groundwork of the plaintiff's case rests upon the theory that this washroom, concededly without defect for the main purposes of its construction and maintenance, was defective as to this driver of a delivery wagon; that it was a 'way' within the meaning of the Employers' Liability Act for this driver to get to the blackboard, and that as to him the master owed a duty which required him to repair this drainage hole and the floor system of the room. This is certainly a refinement of the law which will, if adopted, open the way to abuses which could not have been contemplated by the Legislature, and we do not believe that it can be sustained upon any correct rule of reasoning. It is not, however, necessary to determine this question here, for the plaintiff's pleadings do not attempt to assert that he was limited in his occupation to that of a mere driver; he alleges generally that he was in the employ of the defendant, and that he was 'in the performance of his duties as said employee of said defendant, and while he was passing through the brewery aforesaid,' he received his injuries. His testimony shows that he was in this washroom in the performance of his duties, and it is shown by the evidence that he had been in this washroom in the performance of similar duties for a period of two years, but there is not the slightest evidence that the defendant had any knowledge of any alleged defect in this so-called way, or that the plaintiff or any one else had ever suggested in any manner that there was any danger to be apprehended from the use of this drain in the performance of the ordinary work of washing out beer kegs or in going to this blackboard twice a day. Section 202 of ...


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