Carey v. Manhattan Railway Co. , 101 N.Y.S. 631 ( 1906 )

Clarke, J.:

The plaintiff was in the employ of defendant as an iron worker • on its elevated structure, and on the day of the accident from which he suffered injuries, was one of a gang engaged in drilling holes directly under the top girder of the track. A foreman had previously marked the places at which the holes were to he drilled. The plaintiff had been engaged in similar work in the immediate neighborhood for several days, and for about nine months had been engaged'in doing similar work, on various parts .of defendant’s structure, during which time the road had been operated electrically through what is known as the third-rail system. At the point at which plaintiff was working at the time of the accident, certain wires, four or six in number, pass under -the structure, attached thereto rather loosely, so that they are movable, and serve to carry the electrical current to the third rail. In drilling the holes, plaintiff and his coworkers used a series of contrivances or tools known as a knee, a ratchet and a clamp. The knee, consisting of a piece of double-angled iron weighing about twenty-nine pounds, is attached to the iron work in which the hole is to. be drilled by the clamp, weighing about twenty-five" pounds, and between the iron and the knee is inserted the ratchet, weighing about fourteen pounds, into whicli the drill is fixed. The gang was engaged in setting up the ratchet upon an upright girder preparatory to drilling a hole therein; plaintiff holding up the knee which was being clamped to the structure. Plaintiff and his companions observed the feed wires in close proximity to their tools, but paid no particular attention to them and took no precaution against touching them with their tools while engaged in clamping the knee and the ratchet. Before this fvork was completed there was an explosion and blinding flash whereby plaintiff was burned and seriously injured. There can be no doubt that this explosion was caused by contact between one of the iron tools and one of the feed wires resulting from some break or defect in the insulation of the wires.

The evidence fairly establishes that there must have been a defect in the insulating material either existing prior to the occurrence or caused at the moment thereof by abrasion from the heavy iron tools or implements then used by the plaintiff and his gang. The plaintiff had a verdict upon the trial in the City Court which was reversed upon appeal to the Appellate Term of this court. ■ (50 Misc. Rep. 335.) We would be quite satisfied with the disposition of the case by that learned court were it not for the fact that no attention seems to have been paid to the duty laid upon the master when he sets an employee at work in a place hazardous by reason' of hidden dangers • known to the master and unknown to the employee. It has always been the law that an employee assumes" the obvious risks of his employment, and the Employers’ Liability Act (Laws of 1902, chap. 600) has modified the rule only in so far as to require a submission of the question to the jury as one of fact whether the employee understood and assumed the risk of injury. (Kiernan v. Eidlitz, 115 App. Div. 141.)

But it is the obvious risk that is assumed. Latent, hidden dangers, known to thé employer and unknown to the employee, of which no information or warning or. instruction has been given are not assumed. The duty of the master is to furnish a safe place in which to perform the work. This master’s duty cannot be delegated.. There are kinds of work which are inherently unsafe and. can only be prosecuted ■ with the utmost care and caution. When danger lurks in apparently harmless instrumentalities the duty of instruction and warning is imperative. A stick of dynamite carries no terrors to the ignorant. A wire may transmit by an innocuous current the message's of commerce or of social life through the inductive agency of the telegraph or telephone instrument, or it may carry an electric current for light or motive power of such force and intensity as, if interfered with, to cause instant death. To inform and instruct under such circumstances becomes part of the duty of the master which cannot be. delegated.

. This obligation the defendant seems to admit and to have realized upon the trial. Its supervisor of structure, Riley, testified : “It was my- duty to instruct those men as to the dangers attending their work and caution them to be. careful * * * of the third rails and wires. I was directed to do so by a superior officer, the road engineer, Mr. Lockwood. He directed me to instruct my foreman and my directions to the foremen were to 'warn their men. It isa fact that I did instruct the foremen; under my directions I instructed Rehoe and Fitzgerald. I gave instructions' to them to warn their men of the dangers attending contact with the third rail or wire.”

If this testimony stood for its full value and uncontradicted it would, appear that the defendant performed its duty. But Fitzgerald, the foreman of riveters, under whose orders the plaintiff was, testified : •“ I did "have instructions from Mr. Riley, the general supervisor, to warn my men as to all dangers connected with electricity on the road, of all dangers, but there was no reference made to the wire.” “ I did not give them any caution as to letting them come in' contact with the electric wires. I referred more or less to the third rail. * * * I did not know just what danger there was in those wires.x These wires that ran from one side of the-structure to the other were connected with the third rail. * * * I did not.instruct them about any danger connected with the electric wire particularly," because I knew nothing about it. I did not get any instructions myself to that effect.”

The plaintiff testified: “I do not know what the purpose of these wires was, what they were used for. I don’t know what they were used for, not when I went there, and I don’t know yet ;■ I had not any experience. I was hired to use the ratchet, that is all I was "doing while I was on the road. During all the year I was on the road I never heard what any of these wires were for, I had seen them but never passed any remark about-them, did not know what they were.” It appearing that the plaintiff had to work with heavy iron tools in close proximity—‘two inches-—-to these wires, that they carried a heavy current of electricity, it seems to me that if WO assume that the wires were of the best quality as to insulation, that they had been properly inspected by a competent inspector within a few days of the accident, that no flaw in the insulating covering had -been discovered, and even assume that in the process of ad justing this .knee and brace, the plaintiff himself had caused a break in the covering of the wire, and that thereby a short circuit Was established, it yet remained a question for the jury whether the ■ defendant had been negligent in failing to properly warn and instruct the plaintiff. If so, and the accident resulted therefrom,' then the fact that plaintiff may have caused the short circuit by allowing the tool to come in contact with the wire would not necessarily defeat him-. Conduct which, with knowledge, would constitute contributory negligence, without knowledge or warning or instruction might not. Whether or not an act is negligent must alvvays depend upon the attendant circumstances.

The case presented questions of fact requiring submission to the jury. The learned trial court submitted the question of negligence of the defendant, and specifically the question of whether or not it failed in its duty of proper warning and instruction, and the question of the contributory negligence of the plaintiff. The jury resolved the questions involved in favor of the plaintiff,, and we find no grounds upon which that verdict should be disturbed.

The determination of the Appellate Term should be reversed and the judgment entered on the verdict reinstated, with costs and disbursements here and at the Appellate Term.

Patterson, Ingraham and Laughlin, JJ., concurred.

" Determination reversed and judgment reinstated, with costs and disbursements to plaintiff in this court and at the Appellate Term.