Schwartz v. Cornell , 36 N.Y. St. Rep. 646 ( 1891 )

Brady, J.

Giving the plaintiff the benefit of all the propositions urged in his favor; namely, that the foreman put in charge of the men, including the plaintiff’s intestate, was incompetent, that the defendants were remiss and negligent in not covering the hole through which the intestate fell, and did not, therefore, discharge the duties they owed to the workmen, nevertheless the evidence shows conclusively, not only that the intestate knew of the existence of the hole, but that in working near it he exposed himself to danger voluntarily, inasmuch as he was not obliged to do his work at that point, and apparently chose it because it was more convenient, and involved less labor. And no case can be found in the books in which a workman, albeit unused to the employment he was engaged in, but with full knowledge of its dangerous features and surrounding elements, has recovered for injuries received from one of such dangers to which he voluntarily exposed himself. He is bound to protect himself by the use of his senses. The rule is well settled: “If the servant, before he enters the service, knows, or if he afterwards discovers, or if, by the exercise of ordinary observation or reasonable skill or diligence in his department of service, he may discover, that the building, premises, machine, appliance, or fellow-sen ant, in connection with which or with whom he is to labor, is unsafe or unBt in any particular, and if, notwithstanding such knowledge or means of knowledge, he voluntarily enters into or continues in the employment without objection or complaint, he is deemed to assume the risk of the danger thus known or discoverable, and to waive any claim for damages against the master, in case it shall result in injury to him. ” Thomp. Heg. p. 1008; Haskin v. Railroad Co., 65 Barb. 129, affirmed 56 N. Y. 608; Jones v. Roach, 41 N. Y. Super. Ct. 248;. Stoutenberg v. Lumber Co., 13 Wkly. Dig. 445; Appel v. Railroad Co., 111 N. Y. 550, 19 N. E. Rep. 93; De Forest v. Jewett, 88 N. Y. 264. The court in the last case cited said: “We do not see how the defendant can be held liable in this case without abolishing the well-established rule that the servant, by accepting the employment, assumes the risks and perils incident thereto, so far as they are apparent and obvious.” The judgment appealed from must for these reasons be affirmed, with costs.

All concur.