Dorney v. O'Neill , 54 N.Y.S. 235 ( 1898 )

McLAUGHLIN, J.

This is an appeal from a judgment entered upon the verdict of a jury, awarding to the plaintiff $3,200 damages for personal injuries, and from an order denying a motion for a new trial. The plaintiff was an employé of the defendant, and at the time of the accident was working in the basement of the defendant’s store. In going to and from his place of work it was necessary for him to walkthrough a hall or passageway many feet in length, and from five to six feet in width. This passageway was lighted by nine incandescent electric lamps placed at intervals along its entire length. These lamps were operated and controlled by three separate switches; those designated in the evidence, 1, 2, 3. 4, and 5 by one switch; 6, 7, and 8 by another; while 9, which was located at the end of the passageway, and about 90 feet from where the plaintiff was injured, by still another. At the close of each day’s work a signal was given, by the striking of a bell, for defendant’s employés to quit work, and leave the building, and when this signal was given lights 1 to 5 were extinguished, and as soon as the employés had left the building the remaining lights were extinguished, except 9, which was kept burning night and day. On the day of the accident the signal to quit work was given, lights 1 to 5 were extinguished, and the plaintiff started to leave the building, but before he had passed entirely through the passageway all the lights went out, and in attempting to proceed in the darkness he ran into a box or basket on wheels, designated in the evidence a “wheeler,” stored in the passageway, and sustained a very serious injury. The recovery obtained by him is attempted to be sustained upon the ground that the defendant was negligent (1) in storing the “wheeler” in the passageway, and (2) in not having the passageway sufficiently lighted. It appeared upon the trial, and the fact was not contradicted, that it had been the custom of the defendant, during all the time that the plaintiff had been in his employ, which was about two years, to store “wheelers” in the passageway, and that the plaintiff knew it. He himself testified that the “wheelers”' were generally standing in the passageway every night. The risk,, therefore, of walking through the passageway by reason of the “wheelers” being there stored, was one which the plaintiff .assumed, since it was incident to his employment. The defendant had the right to. use the passageway for such purposes as he saw fit in connection with his business, and if the storage of the “wheelers” there was a source of danger to the plaintiff, and the plaintiff knew of it, by continuing in defendant’s service, having such knowledge, he also assumed the risk. The rule is well settled that the servant assumes, not only the risk incident to his employment, but also all dangers which are obvious and apparent, and if he enters into or continúes in the service, having knowledge of the danger involved, he is in law deemed to assume the risk, and to waive any claim for damages in case of injury. Sweeney v. Envelope Co., 101 N. Y. 524, 5 N. E. 358; Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286; Crown v. Orr, 140 N. Y. 450, 35 N. E. 648; Knisley v. Pratt, 148 N. Y. 372, 42 N. E. 986. The recovery cannot be sustained upon this ground, nor do we think it can be sustained upon the ground that the defendant was negligent in not sufficiently lighting the passageway. It is-conceded that the plaintiff provided, in the first instance, a proper system for lighting the passageway, and supplied a sufficient number of lamps for that purpose. These lamps, so far as appears, had never before failed to accomplish the purpose for which they were-intended, and the extinguishment of all of them was in direct violation of defendant’s orders. Lamps 6, 7, and 8 were not to be - extinguished until the employés had left the building, while lamp 9 was to be kept burning day and night. Why were these lamps extinguished on the evening in question? What caused them to go out? Was it by reason of the negligence of the defendant or of a co-servant? Was it due to some defect in the system for which the defendant was liable, or was it due to some agency over which he had no control? A correct answer to these inquiries cannot be obtained from the record before us. Before the plaintiff was entitled to recover, it was necessary for him to establish personal fault on the part of the defendant, or what is equivalent thereto; and until he had done that the defendant was entitled to the benefit of the presumption that he had performed his duty. Cahill v. Hilton, 106 N. Y. 512, 13 N. E. 339. The accident was an unfortunate one, and the plaintiff was very seriously injured, but this of itself did not entitle him to recover. Before he could do that, it was necessary to establish facts from which it could be fairly said, under well-recognized rules of law, that his injuries were due to some wrongful act, either of omission or commission, of the defendant.

It follows that the judgment must be reversed,' and a new trial, granted, with costs to the defendant to abide the event.

VAN BRUNT, P. J., and PATTERSON and INGRAHAM, JJ., •concur.