Simpson v. New York Rubber Co. ( 1894 )

BROWN", P. J.

(concurring). I concur m the affirmance of the Judgment in this case, but I do not now agree to the proposition that an employé cannot waive the provisions of the statute which requires owners of manufacturing establishments to properly guard all machinery, so far as the statute may be treated as having been enacted for the employé’s benefit and protection. Whether the plaintiff had waived the benefit of the statute was, upon the trial, treated by the court and counsel as a question of law. No request was made to have the question of waiver submitted to the jury. It is true the court refused to charge that, if the plaintiff waived the provision of the statute, he could not recover; but as it had correctly ruled that there was no waiver in law, and .as there was no request to submit the question to the jury, there was no error in its refusal to charge as requested. The rule applied by Justice Cullen excludes waiver by express stipulation as well as that arising from the continued use by the employé of improperly guarded machinery. It is not raised in this case by any .-appropriate exception, and, while it may be that the views expressed are correct, I prefer to withhold my opinion until the question is directly presented, and has been fully argued. The ruling of the court that the plaintiff could not, upon the facts presented, be deemed to have waived the benefit of the statute, is -directly sustained by Knisley v. Pratt, 75 Hun, 323, 26 N. Y. Supp. 1010, and Freeman v. Mill Co., 61 Hun, 125, 15 N. Y. Supp. 657, and is in harmony with the remarks of Judge Earl in White v. Lithographic Co., 131 N. Y. 631, 30 N. E. 236. There is nothing "in the second report of Freeman’s Case, 70 Hun, 530, 24 N. Y. Supp. 403, affirmed in court of appeals without opinion in April, 1894 (37 N. E. 567) that necessarily conflicts with these authorities. Upon the facts found by the jury upon the second trial the plaintiff was guilty of contributory negligence, and,. as the judgment is sustained by that fact, we cannot assume that the court of appeals -approved of the views expressed in the general term opinion. The judgment must be affirmed.