Schmidt v. Carper , 270 A.D. 411 ( 1946 )


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  • Brewster, J.

    Defendant, the owner and occupant of a one-family dwelling house and its lot known as No. 9 Oxford Road, Albany, N. Y., has been held liable for plaintiff’s injuries accidentally sustained in the course of her service to defendant as a domestic servant, a housekeeper.

    Plaintiff’s injuries occurred on December 15, 1942, upon defendant’s premises where she had been continuously employed for about a month and a half, and in the course of which she testified she had full and complete charge as a housekeeper. There were no fellow servants. For several days prior to the accident and following it, defendant was confined to her bed in an upstairs room in her home by a serious illness. The proof is that on the morning of the accident a neighbor came to the house to assist in nursing the defendant and, in the presence and hearing of defendant, directed plaintiff to take some rugs outdoors and shake them, no further or more specific directions having been given. The proof is that shortly thereafter plaintiff took the rugs out a side door entrance and threw them into the adjacent private driveway and then, as she took two or three steps' toward them, she slipped on the icy surface of the driveway, fell, and met with the injuries in question.

    *413Liability has been determined in negligence upon the general ground of defendant’s omission to afford plaintiff a safe place to work because of the slippery character of the surface of the private driveway as occasioned by water flowing thereon from the side roof of the dwelling and freezing and adhering thereto. The case does not involve the casting of waters upon a sidewalk or a public place and the formation of ice thereon to the injury of a passerby. The proof is undisputed that defendant’s dwelling house was constructed in accordance with good engineering practice and good and usual architectural design, and of a type and design common to its area. Assume that, notwithstanding this, a question of fact could arise as to defendant’s actionable negligence in having suffered water to run from one of the roofs onto the driveway and form ice thereupon — and this was the particular question submitted to the jury — it is my opinion that there was no sufficient evidence to justify a finding that the ice on the driveway upon which plaintiff slipped, or its slippery character, resulted from such a source or cause and caused a situation which was unusual or different from conditions prevailing generally and which were due to prevailing climatic and meteorological conditions. For that reason alone it is my opinion that the evidence failed to disclose any basis for finding defendant guilty of any negligence which was a proximate cause of plaintiff’s injuries. Aside from this, however, I feel there was no sufficient evidence to take the case to the jury because of other considerations. Liability is sought upon the claim of defendant’s negligence in failing to furnish plaintiff a safe place to work. Such a responsibility is determined upon the reasonable foreseeability of the harmful consequences, by reason of the defendant’s superior knowledge of the hazards which brought the harm. Here, under the undisputed facts of the case, no finding is justified which imputes such superior knowledge to the defendant, since plaintiff herself had as good or better opportunity and was in as good or better position to have seen and prevented the harm as was defendant. To my mind this phase of the matter is analogous to the simple tool ” rule in the law of negligence as regards the duty of the master to furnish a safe place and appliances for his servants. (35 Am. Jur., Master and Servant, § 146, p. 579; § 177, p. 607 et seq.) Here I see no escape in the evidence from a holding that the plaintiff employee had at least equal knowledge or means of knowing of the danger. And in such case I understand the rule to be that if the employee discerns the situation and depreciates the danger or, if it is so *414obvious that an ordinarily prudent person in her position would have done so, liability is not east upon the employer. (35 Am. Jur., Master and Servant, § 185; 118 A. L. R. 449, 450.)

    The judgment should be reversed on the law and on the facts and the complaint dismissed.

Document Info

Citation Numbers: 270 A.D. 411

Judges: Brewster, Heffernan

Filed Date: 3/6/1946

Precedential Status: Precedential

Modified Date: 1/12/2023