Rice v. Eureka Paper Co. , 75 N.Y.S. 49 ( 1902 )

Spring, J. (dissenting):

I cannot concur with the majority of my brethren in the concluclusions reached in this case,

We may regard it as settled by the verdict of the jury that had there been a shifter on this machinery accessible to the -plaintiff he might have quickly stopped it, and prevented the frightful injuries which-were inflicted upon him. Also that the defendant’s-manager or superintendent realized the necessity of procuring this shifter, and had, in fact, obtained one which was in the building for the very purpose of enabling the machine to be stopped readily. Further, that on the Saturday night preceding the accident, the dangerous condition of the machine was sharply called to -the attention of this superintendent, followed up by the statement of-the plaintiff that he would quit unless a shifter was put on.- - That thereupon the superintendent who represented the defendant stated that he intended to shut down the next week for other repairs, and that the shifter would then be adjusted. The plaintiff, relying upon this promise, continued his work, and during Wednesday morning following received his injuries, by reason of the absence of this shifter. The cases cited in the prevailing opinion from the first and second departments did not involve complicated machinery, but perfectly obvious risks, which any man, however simple minded, would understand, and while there are remarks in the opinions which justify the conclusion that the plaintiff cannot recover, yet I think so far as the case itself in each instance" is concerned, it is not necessarily an authority against the plaintiff. In the case of Healy v. Ryan (25 Wkly. Dig. 23; affd., 116 N. Y. 657) the plaintiff was injured by a collision attributable to a defective brake. The. proof showed that he had complained of the defect and had been assured that it would be remedied. In the charge of the trial court, there being conflicting evidence as to this promise, it was left-to the jury to pass upon as a question of fact, and its . significance, therefore, was pointedly in the cáse. The General Term of this department affirmed a recovery, commenting specifically on the effect of the promise to remedy these defects. That case, it seems to me^ is quite analogous to the present one, and the ■Court of Appeals in affirming the judgment did so with the charge squarely presenting the question involved here, and must have assented to the doctrine which thus stood out prominently in the case. In the two or three cases in the Court ■ of Appeals commented upon in the prevailing opinion, while not exactly in point, the -court seems to recognize the doctrine that where a promise is made .by a master to his servant that lie will repair a defect in a machine this is equivalent to saying that he will assume the risk of the .defective machinery instead of the employee. The text writers and courts of other States and of the United States Supreme 'Court, so far as 1 can find, are substantially a unit on this proposition against the position contended for in the opinion of the court.

The doctrine of assumption of risks is contractual in its nature, and, of course, the parties by agreement can fix their relation. "When the machinery is defective the master may not desire to shut down Ms plant, but prefer to take the hazard of an accident to one 'of Ms employees. He, therefore, says to him : “ Go on and perform the work as you have done before and in a few days when there is .a lull in the business I will remedy the defect.” The servant assents to this and is injured because of the defect, and within the ■time stipulated for making .the. repairs. It is no moré than fair that upon a- state of facts like this that the servant should be relieved from assuming the risks by implication imposed upon him when the danger is obvious. The only reasonable interpretation that can be put upon the promise of the defendant’s manager is that it was expected to shift the liability to the defendant. Unless this is true the promise of the defendant is meaningless and. does not inuré at all to the benefit of the plaintiff. The master gets his work done, keeps his machinery moving upon the strength of his promise,- and., still if injury occurs the plaintiff cannot recover, if the doctrine- of the prevailing opinion is true, because he knew of the -existence of the defect. The duty is imposed upon the defendant to provide reasonably safe machinery... That is the basic principle of these cases. He becomes aware that he has failed to do this. Notwithstanding this increased peril, he urges his servant to continue* work on this dangerous machinery, promising to repair' it within a definite time, and it is just he should stand the consequences. In an arrangement of this kind the defendant, by reason of greater, ability, greater contact with men and more experience, has, in the vernacular of the farm, the long end of the evener, and should be held to the legitimate consequences which flow from the promise he has made.

Nor can I see that this is fraught with the peril to a manufacturer contended for in the prevailing opinion. If the person injured is bent on committing perjury to make out a case, he can.simply add' to the promise as given by the plaintiff the additional fact that the. master told him if he would stay and work he, the master, would be. responsible for any injuries sustained by reason of the defect called! to the master’s attention, and the doctrine of assumption of risks confessedly is not applicable to that servant.

Both upon principle and authority I am in favor of affirmance.

Davy, J., concurred.

Judgment and order reversed upon questions of law only, the facts having been examined and no error found therein, and new trial ordered, with costs to the appellant to abide the event.