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First Department, November, 1911,

[Vol. 146. company; that the gas company's superintendent, one Butler, went to the tank with a representative of the development company, and the deceased was at that time on the premises. The deceased and another man were told to pump the oil out of this tank by means of a pump that was supplied by the development company. Butler, the representative of the gas company, was there until the deceased and his fellow-workman rigged up the pump, and then Butler left.

and then Butler left. Butler said in the presence of the deceased and his fellow-workman that it was all right, but that they must not smoke around the tank; that these men continued to work and pump this oil out of the tank up to about eleven o'clock at night; the yard was dark and there was no light there; that these men had a lantern which they had used from the time it became dark until about eleven o'clock, when the tank exploded; that the deceased and his fellow-workman were directed to work until they had pumped all the oil out of the tank. Cooper and his fellow-workman were both killed by the explosion. About a half hour before the accident some men were sent down to take food to the men at work, and while Cooper and the other workman were eating this food they pumped the oil. Cooper and his associate cautioned these men while at work not to smoke around the tank. About a half hour after these men left the explosion occurred.

It is not alleged in the complaint nor was it stated in the opening that Butler, the representative of the gas company, had anything to do with the two men at work except to be present when the cover of the tank was removed to enable the oil to be pumped out. He had no knowledge that the men were instructed to work at night or after it became so dark that artificial light had to be provided for their work. He cautioned them against smoking around the tank, and so far as appears this caution was sufficient unless the men had to work after dark. He was justified in assuming that the employers of these men would give them the necessary instructions to protect them from injury while at work at the tank and there was no duty imposed upon the gas company or its representative Butler to furnish the development company or its employees with a safe place to work. I think, however, there was an additional duty imposed upon the development company to fur

App. Div.] First Department, November, 1911. nish its employees with a safe place to work and proper appliances to do the work required of them. Here were men employed by the development company to handle a dangerous substance where an explosion was to be anticipated unless great care was used in performing the work. When the development company instructed them to continue the work until the oil was all pumped out, which would compel them to work after dark, it was the duty of the development company to furnish them with proper light so that they could do their work without being exposed to the danger of an explosion. It is alleged in the complaint that the development company had knowledge of the explosive character of this oil and it was certainly not a safe place for these men to work after dark unless such light as was necessary to enable them to carry out their instructions was furnished of such a character that it would not cause an explosion. The fact that Butler cautioned them not to smoke around the tank was not a performance of the obligation imposed upon the employers of these men, and the warning that he gave was only to refrain from smoking - possibly a sufficient warning if the work was to be done during the day time when no artificial light was necessary; but it was not given by the development company or on its behalf and cannot, I think, be said to be a compliance with the duty which devolved upon the development company to protect its employees. The warning was competent as bearing upon the assumption of risk by the deceased or possibly upon the question as to whether they were guilty of contributory negligence in using a lantern; but I think that question was one for the jury. It seems to me there was an absolute failure of the development company, the deceased's employer, to furnish these men with a safe place to work and safe appliances with which to do the work, or, at any rate, there was a question for the jury to say whether the obligation of the development company to its employees was performed.

The judgment in favor of the Bronx Gas and Electric Company should, therefore, be affirmed, with costs, and the judgment in favor of the Fidelity Development Company should be

APP. DIV.-VOL. CXLVI. 41

First Departinent, November, 1911.

[Vol. 146. reversed and a new trial ordered, with costs to appellant to abide event.

LAUGHLIN, CLARKE and DOWLING, JJ., concurred; Scott, J., dissented as to the reversal.

As to Bronx Gas and Electric Company judgment affirmed, with costs; as to Fidelity Company judgment reversed and new trial ordered, costs to appellant to abide event. Order to be settled on notice.

ANNIE M. RYAN, Respondent, 1. HENRY PHIPPS, Appellant.

First Department, November 3, 1911.

Master and servant - negligence – voluntary services - evidence of

fellow-servant.

A master is not liable for the negligence of one volunteering services to

his servant whereby another, likowise volunteering services, is injured. A maid in defendant's employ was sent to New York city to prepare his

city house for the arrival of his family. She arrived in the evening, The night watchman saw her and rang the bell for her. He had no duty to perform inside thy house, and had no key with which to enter it. The housekeeper not answering the bell the watchman, without any request or suggestion from the maid, went across the street to find plaintiff, who was hired by the day to clean in the house. She had been there that day, and the watchman thought she might have a key. She came across the street and told the watchman that they might get in through some windows she had been cleaning and had left unlocked. He went to the main entrance, requesting plaintiff, as she claimed, to follow him, and opened the gate. As they passed in she fell over a board which had been placed to prevent the gate from being forced in and

was injured. Held, that she could not recover of the defendant for her injuries; That both the watchman and plaintiff were acting as volunteers in aiding

the maid to obtain entrance to the house; That what plaintiff did was not within the scope of her employment; and That, as the only negligence charged was the failure of the watchman to

warn plaintiff of the board, she could not recover even if she had been acting in the course of her employment, for she and the watchman would then be fellow-servants.

APPEAL by the defendant, Henry Phipps, from a judgment of the Supreme Court in favor of the plaintiff, entered in the App. Div.] First Department, November, 1911. office of the clerk of the county of New York on the 28th day of February, 1911, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 3d day of March, 1911, denying the defendant's motion for a new trial made upon the minutes.

John Vernou Bouvier, Jr. (Edward F. Lindsay with him on the brief], for the appellant.

Charles Steckler (Levin L. Brown with him on the brief], for the respondent.

LAUGHLIN, J.:

The plaintiff has recovered a judgment for personal injuries on the theory that they were caused by the negligence of the defendant. The defendant owned the private residence situate at the northeast corner of Fifth avenue and Eighty-seventh street in the borough of Manhattan, New York. The accident occurred at about seven-thirty o'clock on the evening of the 29th day of September, 1908. At this time the house had been closed for the summer and the defendant and his family were at Lenox, Mass. He had left a housemaid in charge of the house, and employed a night watchman to protect the outside of the building and prevent trespassing between the hours of seven o'clock in the evening and seven o’olock in the morning. The night watchman had no duty to perform in the interior of the building, and had no key with which to enter it. The yard between the house and the street was inclosed on the lines of each street by a marble wall covered with boards. On Eightyseventh street some distance easterly there was an opening in the wall from eight to fourteen feet in width — both widths are given in the testimony — forming the main entrance to the house. At the time in question it would seem that the permanent gate had not been placed in this entrance. On either side was a high column and the opening between them was boarded up about eight feet in height with a door for pedestrians which was kept locked and to which the night watchman had a key. Easterly of this entrance there was another entrance to the garage, with a large door at the street line, within which was a smaller door which was used by tradespeople and the serv

First Department, November, 1911. (Vol. 146. ants. The defendant and his family determined to return to New York and occupy the house on the evening of September 29, 1908. A maid was sent on ahead with the baggage to open the house and unpack. She arrived shortly after seven o'clock probably, although she testified that it was eight-twenty, and she entered the premises through the door customarily used by, tradespeople and servants. The night watchman saw her as she arrived and accompanied her and rang the bell to the servants' door for her. The bell was not answered by the housemaid, who, however, was in, for some twenty minutes.

The accident happened on Tuesday. On that day and several days before plaintiff had been working in the house sweeping and cleaning. She was hired by the day, and received one dollar and fifty cents per day, but it does not appear by whom she was hired or paid. She had been paid for two days' work, but her work was not finished, and she had been employed to return and resume it the following morning. On receiving no answer to the bell, the night watchman without any request or suggestion by the maid went across the way, according to his testimony, to interview the plaintiff, who lived in an apartment at Nos. 16 and 18 East Eighty-seventh street, with a view to ascertaining whether or not the housemaid in charge of the house was in as he knew that plaintiff had left there at six o'clock and would likely know. The plaintiff testified that he informed her that one of the maids had arrived, and that the family were to arrive shortly, and asked whether she knew where the housemaid in charge of the house was, and whether she had a key; that she informed him that the housemaid had been ill all day, but that in cleaning the windows that day she had opened them and on shutting them did not lock them, and that perhaps he could get in that way, whereupon he requested her to accompany and show him; that she accompanied him, and they entered through the servants' entrance, and after conversing with the maid who had arrived to open the house and an engineer who was with her, the night watchman requested her to “come along quick " and show him “ the window;” that it was very dark and she followed him out onto the street the way they entered, and to the door of the main gateway which opened outward toward the

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