Greif v. Buffalo Lockport & Rochester Railway Co. , 205 N.Y. 239 ( 1912 )

I vote for the reversal of the judgment below and concur in the opinion of Judge HAIGHT, so far as relates to the alleged contributory negligence of plaintiff's intestate, and without considering the question whether Otis J. Carr, the car inspector, was a person whose sole or principal duties were that of superintendence within the statute, I am of opinion that the evidence presented a question of defendant's liability at common law to be determined by the jury. If Carr had, on this occasion only, or on other isolated occasions failed to cut off the electric current when he called on deceased to go to the top of the car and assist him, it would have been the negligence of a fellow-servant in a detail of the work unless Carr was a superintendent, within the Employers' Liability Act. But Carr himself testifies that he was not accustomed to turn off the power when a change was to be made of the trolley pole. I think the jury might find that this was a negligent manner of conducting the work. The learned counsel for respondent contends that "It is impossible to see how deceased could have received any shock." Nevertheless, I think it is certain that the deceased did receive an electric shock. The burns proved that conclusively. If the state of knowledge was such that a person could receive a shock in the position that the deceased was, while the experts were unable to determine how it was possible that the person should receive a shock, the jury might very well find that it was an unsafe and negligent manner of conducting the work not to cut off the electric current, which could have been readily done. For the adoption of an unsafe and negligent method of conducting the work the defendant would be liable. In Doing v. N.Y., Ontario Western Ry. Co. (151 N.Y. 579) it was said: "We will assume then, what cannot be questioned, that the workmen were doing the defendant's work in a dangerous and reckless manner. But these workmen were doing nothing but what, according to the testimony, they had been doing for years before. If the defendant permitted its employees to carry on its operations upon those three tracks outside the shop in such a manner as to endanger the lives of those inside, who could not protect themselves, it failed to discharge to the deceased the duty which the law imposed upon it of furnishing him a reasonably safe place to do his work." (p. 583.) This was quoted with approval inDowd v. N.Y., Ontario Western Ry. Co. (170 N.Y. 459). It was said by the court in O'Brien v. Buffalo Furnace Company (183 N.Y. 317): "It is the duty of the master to use reasonable care to so conduct his business as not to subject servants to unnecessary danger in the prosecution of their work." (p. 321.) In this case the jury might find that the duty had not been performed.

VANN and CHASE, JJ., concur with HAIGHT, J.; COLLIN, J., concurs with CULLEN, Ch. J.; WILLARD BARTLETT, J., concurs with HAIGHT, J., and CULLEN, Ch. J.; HISCOCK, J., not sitting.

Judgment reversed, etc.