Fitzwater v. . Warren , 206 N.Y. 355 ( 1912 )

The action is by an employee against employers to recover, under the principles of the common law, damages for personal injuries. The trial court dismissed the complaint. We are to determine whether or not the evidence presented an issue of fact; in reviewing it we must give the plaintiff the advantage of all the facts properly presented and of every favorable inference that can reasonably be drawn. (Kraus v. Birnbaum, 200 N.Y. 130;Pinder v. Brooklyn Heights R.R. Co., 173 N.Y. 519.)

The defendants operated a saw mill. The work of the plaintiff was to saw the slabs into pieces of different lengths by placing them against a circular saw which received its power by means of a belt running from a pulley on the main power shaft located near the floor of the basement underneath. It was a part of his duty to replace the belt upon the pulley of the main shaft whenever it ran off; and in doing that his foot was mangled by an unguarded setscrew in and projecting one and one-half inches from the main shaft. The injuries so received are the basis of this action. The main shaft revolved in the top of a bed of sawdust, formed by the sawdust which had sifted through the floor above where the saws were. The setscrew was twelve or fourteen inches from the pulley. When the plaintiff replaced the belt he stood astride the revolving shaft at the point where the setscrew was and with a stick which he held crowded the belt upon the pulley. In pursuing this manner he followed the instructions given him by a representative of the defendants at the time he was employed four days before that of the accident. Concerning the exact cause of his injuries, he testified: "In the meantime (while he was pressing the belt on the pulley), as the shaft was revolving, this setscrew was in the sawdust and it kept digging out the sawdust so it would give under my foot so it caught me right there on my foot." The age of the plaintiff was twenty years and ten months. He was a farm laborer. He received the injuries between three and four o'clock in the afternoon of the fifth day of his employment, during which he had replaced the belt upon this pulley in the same manner and under the same conditions hundreds of times, as he testified. He knew of the setscrew and at the time of the accident remembered it was there; and he testified that he tried to avoid it and put on the belt the same as he always had. On the morning of that day a fellow-workman had warned him of the danger from it. He was familiar with all the conditions and the light in the basement enabled him to perceive the state of things there.

The Labor Law requires the proper guarding of all setscrews. (Section 81.) The counsel for the respective parties properly assumed that the evidence disclosed facts upon which negligence on the part of the defendants might be predicated. (Glens FallsPortland Cement Co. v. Travelers' Ins. Co., 162 N.Y. 399;Wynkoop v. Ludlow Valve Manfg. Co., 196 N.Y. 324.)

A ground of the motion for the dismissal of the complaint was that the injuries of the plaintiff were the result of a risk which was obvious and which he assumed. An employee who enters or continues in the employment with actual or constructive knowledge of the defects existing or arising through the negligence of the employer, and an appreciation of the dangers they create, without any assurance on the part of the employer that he would remedy them, and in the absence of a special request by the employer or of an emergency, assumes the risks arising through those defects and dangers. The basis for and the nature of the risks of such a character are lucidly and tersely stated by Judge VANN in Dowd v. N.Y., Ontario Western Ry. Co. (170 N.Y. 459). The dangers and risks of such a character should not be confounded with those which exist or arise when and although the employer has discharged his duty of reasonable care to prevent them, and which are normally and inherently incident to the employment. The latter class involve the performance by the master of his duty; the former are predicated upon his negligence. The plaintiff, in the case at bar, must rely on his common-law cause of action under which the assumption of risk is not necessarily a question of fact; nor does the fact that he was under the age of twenty-one years, nor the further fact that the defendants violated a duty imposed by a statute shield him from the application of the doctrine of assumption of risks. (Crown v. Orr, 140 N.Y. 540; Buckley v. Gutta Percha R. Manfg. Co., 113 N.Y. 540; Knisley v.Pratt, 148 N.Y. 372; Gombert v. McKay, 201 N.Y. 27.)

We are unable to ascertain any fact or inference which would permit the jury, upon the submission of the evidence to them, to find that the plaintiff did not assume the risks attendant upon the negligence of the defendants. He had full knowledge of all the conditions and was bound to take notice of the ordinary operation of laws commonly known and regarded, and govern his acts accordingly. The evidence does not indicate or suggest that he was lacking in mental or physical capacity. He had age, intelligence and experience enough to appreciate the dangers and the risks he was under. He knew the setscrew was exposed and was revolving and that if his foot came in contact with it injury would ensue. It is idle to assert the contrary. He saw and was aware that the surface of the sawdust was level with the power shaft, was loose and unstable and the setscrew was preserving a cut or cleft which increased the likelihood that it would yield to the pressure of his feet. All this was obvious to one of ordinary intelligence. His vision at the time of the accident was not interfered with or his judgment distracted. When the condition of things existing at the time an injury is received exposes obvious dangers, the employee must be held to have appreciated the risks, and it does not matter that he may not know their precise effects. Plaintiff's knowledge of the unguarded setscrew and of the condition of the sawdust about it necessarily involved recognition of the fact that if his foot slipped into the cut or cleft or the sawdust yielded or gave way so that his foot came within the range of the setscrew results of a more or less injurious nature would exist. He knowing the facts must have appreciated the risk of that which in fact did happen. Indeed he does not pretend that he did not appreciate it and avers that he attempted to secure himself against it. He continued to expose himself to a danger which he knew and fully appreciated, without assurance of safety or remedy and not under stress of an emergency or special request, and assumed the risks connected with it. (Dixon v. N.Y., Ontario W. Ry. Co.,198 N.Y. 58; Kaare v. Troy S. I. Co., 139 N.Y. 369; Appel v.Buffalo, N.Y. P. Ry. Co., 111 N.Y. 550; Rooney v. BroganCons. Co., 194 N.Y. 32; Rooney v. Sewall Day Cordage Co.,161 Mass. 153; Feely v. Pearson Cordage Co., 161 Mass. 426;Downey v. Sawyer, 157 Mass. 418.)

The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs in both courts.

HAIGHT, VANN, WERNER and HISCOCK, JJ., concur with CULLEN, Ch. J.; GRAY, J., concurs with COLLIN, J.

Ordered accordingly.