Bowers v. Columbia Garage Co. , 156 N.Y.S. 286 ( 1915 )

Guy, J.

The action is to recover damages for personal injuries. Plaintiff, employed on April 3, 1913, as a washer in defendant’s garage, testified that on that date he with other workmen of the defendant, washed a large automobile on one of the wash-stands in that place; that after the machine was washed it became necessary to skid the car around on the washstand so as to get it back into the space whére it belonged; that the workmen were unable to make the car skid, and that the superintendent or foreman instructed one of the men to put some kerosene oil under the rear wheels so as to make it skid; that in pursuance of said direction about a pint of kerosene oil was then put under the rear wheels, and that plaintiff, standing with his back against one of the rear wheels and his hands on the spokes, tried with the other workmen to push the car over; that the foreman said “ Stick to it; don’t stop,” and then as the car moved the plaintiff’s foot went from underneath him on the oily surface and his back or shoulder struck the hub of the automobile, and he thus sustained the injuries complained of.

The plaintiff further testified that in other garages where he had worked there was either a turn-table or skids used to turn the cars around; that there were no skids in the defendant’s garage, and no turn-table there; that a “ skid,” referred to in his testimony, is a small platform about two feet long and six inches wide, with four revolving wheels underneath; and that when an automobile is backed on two of these skids it can be skidded as desired. The plaintiff’s testimony was corroborated by that given by two other witnesses.

At the close of the plaintiff’s case the learned trial justice dismissed the complaint on the ground that the plaintiff had failed to prove a cause of action. This ruling was erroneous.

It was the duty of the defendant to use reasonable care in providing its workmen for use in its work sufficient, safe and suitable appliances in the prosecution thereof; and on the record as it stood at the close of the plaintiff’s case the question arose whether in view of the evidence that there were no skids or turntable in the garage the defendant had performed that duty. It is inferable from the testimony that if skids or a turn-table were provided at the garage the defendant’s superintendent would not have ordered kerosene oil to be thrown under the wheels of the automobile, and if the oil used by the superintendent, because of the absence of appliances like skids or a turn-table, created a dangerous condition in the prosecution of the work the defendant would be chargeable with negligence. Bensing v. Steinway & Sons, 101 N. Y. 547; Mosier v. Weil-Haskell Co., 137 App. Div. 547; Heiser v. Cincinnati Abattoir Co., 205 N. Y. 379.

The evidence was sufficient to put the defendant on its proof. The exclusion of the notice of the intent to sue under the statute was also erroneous. The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Page and Philbin, JJ., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.