Citation Numbers: 49 A.D. 485
Judges: Adams, McLennan
Filed Date: 7/1/1900
Status: Precedential
Modified Date: 10/28/2024
The plaintiff was engaged in pulling cakes of ice from a raised platform, the bottom of which was made of stringers a few inches apart, and along which the ice was being pushed by slats attached to an endless chain passing above and below the platform, and propelled by an engine. The- plaintiff, while engaged in this work, attempted to walk across the platform to go to the other side of the building. In doing so he stepped between the stringers of the platform, and one of the slats attached to the endless chain caught his leg, pushed it along a distance not to exceed six feet, where it came in contact with a crosspiece on the platform, and the leg was very seriously injured.
The evidence is uncontradicted that the plaintiff knew the exact construction of the platform ; all the dangers about it were apparent, and it seems to me clear that when he attempted to cross he assumed the risk of slipping and stepping between the stringers of the platform. It is said, however, that if the machinery which moved the chain had been in proper repair (which, concededly, it was not) it could have been stopped, and probably would have been stopped before the moving slats had gone the distance of six feet, and thus the injury to the plaintiff’s leg would have been prevented. This suggestion involves the proposition that a co-employee stationed at the extreme end of the platform would have discovered that the plaintiff’s foot had gone through the platform; would have given a signal to stop to a co-employee in charge of the machinery, and stationed on the upper floor of the building; that such co-employee would have understood the signal, and would have stopped the machinery; all within about three seconds of.time. In no other way could the accident have been avoided after the plaintiff’s foot had gone through the platform.
We think that in attempting to cross the platform the plaintiff not only assumed the risk of falling through, but that he also assumed the risk of failure on the part of the co-employees to do all the things necessary to stop the machinery within that short space of time.
It seems to me that it is established by the evidence as clearly as it is possible to establish any fact that, even if the machinery had been in perfect order, the plaintiff’s foot having slipped through
If the machinery had been originally construed so .that the endless chain could not have been stopjied in less than thirty seconds, instead of being so constructed that it could be stopped in three seconds, clearly the defendant would not have been liable. (Burke v. Witherbee, 98 N. Y. 562; Marsh v. Chickering, 101 id. 396; Bajus v. S., B. & N. Y. R. R. Co., 103 id. 312.)
In the Bajus Case (supra) the complaint was that the defendant’s engine was so out of repair that it could not be stopped as quickly as if it had been in good repair, and that the plaintiff, having been caught upon the track, was run over because of its defective condition. It was held in that case that the plaintiff could not recover, because the defendant was under no obligation to furnish an engine of sufficient power to stop within a certain distance, and that it was entirely immaterial whether the engine as originally constructed lacked such power, or was without such power because of defects which afterwards existed. In that case, except for the defects in the engine, it could have been stopped before it ran upon the plaintiff ; because of the defects it could not be stopped as quickly, and the plaintiff was injured, but it was held that no recovery could be had.
In the case at bar, even if we assume that with the machinery as originally constructed the endless chain could have been stopped before the plaintiff’s leg was shoved along the distance of six feet, and before it struck the crossbeam of the platform, and that by reason of the defect in the machinery it could not be stopped quickly enough to prevent such injury, we think under the authorities cited the plaintiff was not entitled to recover. There is no evidence tending to show that the plaintiff attempted to cross the platform relying upon the fact that the machinery would be stopped within a particular time in case he fell. The arrangement to give the signals to stop was not made for that purpose; it was not to prevent accidents of the character which caused plaintiff’s injury that the appliance to stop "the machinery was constructed. Such an accident could not have been anticipated.
In an actiozz of this chaz-aetez- the evidence znust faiz-ly show negligezzce ozi the part of the defendant as the sole cause of the accidezzt. (Weston v. City of Troy, 139 N. Y. 281; Laidlaw v. Sage, 158 id. 94.)
The judgzzzent should be reversed azzd a new trial ordered, with costs to the appellant to abide event-
judgment and order affirmed, with costs.