Garety v. King ( 1896 )

INGRAHAM, J.

—The action is brought to recover for the damage sustained by the death of the plaintiff’s intestate. By the plaintiff’s evidence it appeared that the deceased was killed on tlie 18th day of February, 1893, by falling from the temporary roof of the building which the defendant was erecting, through a skylight in the roof. The plaintiff produced no witness who saw the accident. It appeared that the defendant had erected a temporary roof over the building that he was constructing, made of rough boards; and in the middle of that roof, ior the purpose of lighting the interior of the building, was placed an ordinary window sash for a skylight. On the ITth and 18th of February, 1893, there had been a heavy fall of snow, and on the morning of the 18th, some time before 12 o’clock, the plaintiff’s intestate, with other men, ivas sent upon the roof to shovel off the snow that had fallen there. The men continued at that work until dinner time. Just before dinner, one of the men in the defendant’s employ hallooed to the men shoveling snow to look out, that there was a skylight there; the deceased was present with the witness when the warning was given, and the witness said that after that Avarning he saw the skylight, covered with snow. Another man, who was also working on the roof before dinner, testified that he heard no such warning, but he worked there but a short time, having been called to other work. After dinner, it seems that the plaintiff’s intestate returned to the roof to work, with at least one other man, and deceased subsequently fell through this skylight, and ivas killed. It was disputed whether, at the time of the accident, the skylight had been uncovered; but the roof had been only partly uncovered, the men working towards the skylight, pushing the snow in front of them Avith pushers. Ho one that testified saw the plaintiff’s intestate fall; and there is no eiddence to show AArhy it Avas that he walked into or fell through the snoAV on the skylight aAvay from the place at Avhich he Avas Avorlcing. The plaintiff’s intestate had been Avorking about this place for about four months, and the interior of the building depended largely upon the skylight for light. I can see no principle upon Avhich this defendant, upon this evidence, can be held liable for this accident. The plaintiff’s intestate Avas sent up to this roof to shovel snoAV. He aauls directed to Avork upon this ■ particular roof ; and the condition of this roof, and the labor that he Avas required to do there, would seem to have been as well knoAAm to the plaintiff’s intestate as to the defendant or to his agent. The ordinary risks incident to that Avork were taken by the deceased AArhen he accepted the employment to do the work. Working upon a temporary roof, or a scaffold of any kind, is more or less dangerous; and the risks incident to the employment, or the position in Avhich the Avorlc is to be done, are taken by the person doing the Avork; and, as long as the employer sees to it that no secret defects render the position or appliances used for the Avork more dangerous than ordinary observation Avould indicate, or notifies his employe of any peculiar dangers incident to the Avork, not visible or apparent to a person of ordinary intelligence, ho has performed his duty ; and, if an accident happens, or the employé is injured, the employer is not liable. The direction to shovel the snow off this roof was accepted by the deceased, and thereby he took the risk of the dangers incident to that work; and while engaged in doing the work, in some unexplained way he fell into this skylight. Just how or why he fell through the skylight is, therefore, not apparent, but it is quite evident that, it he had proceeded in the ordinary way in the execution of his work, simply shoveling or pushing the snow away in front of him, he would have discovered the skylight before reaching it, and thus avoided it. He was sent to clean the roof from snow. The very nature of Ms employment was notice to the deceased that all defects in the roof were covered up, and that, to be safe, he must proceed by uncovering the roof before walking upon it. The roof itself was a temporary one, not permanent, where a person sent to work upon it could assume that it was of a character that all parts of it would be safe. The risks that a man assumes in working upon such a roof covered with snow, and the degree of care that he was bound to exercise to avoid injury, must be materially different from that in the case of a permanent structure which one would have no reason to assume was dangerous. In the case of Crown v. Orr, 140 N. Y. 452, 55 S. R. 834, the court say :

“ The master does not insure the servant against all accidents and mishaps that may befall him in the business. The servant, when he enters into the relation, assumes not only all the risks incident to such employment, but all dangers which are obvious and apparent. The law imposes upon him the duty of self-protection, and always assumes that this instinct, so deeply rooted in human nature, will guard him against all risks and dangers incident to the employment, or arising in the course of the business of which he has knowledge or the means of knowledge. If he voluntarily enters into or continues in the service without objection or complaint, having knowledge or means of knowing the dangers involved, he is deemed to assume the risk, and to waive any claim for damages against the master in case of personal injury to him.”

See, also, Kennedy v. Railroad Co., 145 N. Y. 294; 64 S. R. 705.

Applying this principle to this case, it seems to me quite clear that the risk of falling off or through this temporary roof was a risk “ incident to the employment, or arising in the course of the business of which he (the deceased) has knowledge or the means of knowledge.” A master is not liable because an injury occurs in consequence of the nature of the work, or the position in which an employé must place himself to do it. This roof was not built for the purpose of catching snow nor for the purpose of providing a promenade for the workmen employed on the building or others, but for the purpose of protecting the building. And this window sash was put in the roof" to furnish light to the interior of the building during its construction. The roof had been upon the building for about a month, and the deceased had been employed there about four months. The condition of the roof was apparent. The dangers incident to the employment by working upon it were apparent. The fact that the snow covered all inequalities or openings in the roof was apparent. The temporary structure of the roof was apparent. And one accepting such an employment upon such a place to do such work necessarily assumed the risk of either falling from or through the roof while so engaged.' I do not think that there was any evidence from which an inference could be drawn that the deceased was free from contributory negligence. As before stated, it is a little difficult to see how he managed to go upon this skylight and fall through. He was engaged in pushing or shoveling the snow. His ordinary position would be to stand in the place from which the snow had been cleared, and throw or push the -snow away from in front of him. Ho one saw him fall, and no explanation was given of his being upon the skylight. The implement with which he was working was found with the handle broken. But it did not appear whether it was broken before or after his fall, or in consequence of the fall. There is absolutely nothing to show that the deceased exercised any care in doing the work, or that his going upon the skylight .and falling through was not the result of his own negligence or carelessness. I think, upon both grounds,—first, that there is no evidence to show that the defendant neglected any duty that he owed the deceased; and, second, that there is no evi■dence to show that the deceased was free from contributory negligence,—that the complaint should have been dismissed.

The judgment must, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.