DocketNumber: Claim No. 2591-A
Citation Numbers: 104 Misc. 281
Judges: Cunningham
Filed Date: 7/15/1918
Status: Precedential
Modified Date: 2/5/2022
John H. -Brougham, the decedent, was a lock tender at junction lock No 14, of the Champlain canal, at Fort Edward, N. Y. His duty was to operate the gates, when necessary, for the passage of boats. His hours of employment were from three o’clock p. m., to eleven o’clock p. m., each day. He entered the-state’s employ May 1, 1915, having had
The lock had -lower and upper sets of gates. The lock walls were of concrete, and just outside of the westerly side of the lower end of the lock was a concrete stairway from the upper structure to the side of the canal below the lower gates. The stairway, at the time with which we are concerned, was not necessary for the operation of the lock. The lock was designed for the installation of a power system of operation. The only method in use at that time for operating the gates was for the lock tender to push the beam gate end, extending out over the wall, in toward the wall, and conversely to close them—all by hand. To open the lower westerly gate, the lock tender was obliged to push the long beam end of this gate easterly to a point over the westerly lock wall, and, in doing it, to walk across and over the open top of the stairway. The only means afforded for passing across the top of said stairway were three nine-inch planks, laid loosely side by side over the stairway top. There was no railing or protection on either side. The distance from the top of the stairway to the inside
A lamp post stood near the stairway and. planks, but at this time, the state’s employees had omitted to furnish any lamp for it. On the night of May 6,1915, while the decedent was opening the westerly gate, and in that operation was pushing the gate beam over the stairway toward the westerly lock wall, and in so doing was crossing the planks over the stairway—he fell from the planks to the bottom of the stairway with great violence, which resulted in his death on June 4, 1915.
The state contends, in defense, that it has not been negligent, that the decedent’s death was not the proximate result of any negligence of the state, that the decedent was guilty of contributory negligence, and that he assumed the risk of the conditions which prevailed, and of the injuries which came to him.
It was the duty of the state, as master, to furnish to the decedent a reasonably safe place in which to work. This is one of the duties which the employer cannot delegate. The common law, so grudging in its pro- _ tection to employees, and so conservative in its imposition of duties upon employers, so decrees. It is idle to urge that the state which maintained this needlessly open and unguarded stairway, and these unrailed loose planks over which the lock tender was- obliged to pass, pushing ahead of him the beam end of a ponderous gate, used reasonable diligence and care to provide a safe place for him to work. On the con•trary, it was essentially dangerous, particularly for an employee seventy-nine years of age. The state should have required the stairway to be closed, so long as manual operation of the gates was continued,
. The decedent was free from contributory negligence. The burden is upon the state to establish that he was guilty of carelessness. Code Civ. Pro., § 841b. It has not made any proof whatever that the decedent had any power, authority, duty or opportunity to remedy the unsafe conditions existing. No one witnessed Brougham’s fall. The circumstances do not show affirmatively that it was due to any carelessness on his part. His fall well might have been expected to occur in such a place and circumstances while in the exercise of all reasonable care. His mere fall, under the conditions described, is not enough to raise the inference that any carelessness on his part contributed to it.
It is. urged that the decedent assumed the risks of the danger involved in the defective and negligent conditions here described. This claim is not brought under the Employer’s Liability Act, but at common law. Consequently, the statute, which has altered the principles applicable to “ assumption of risk” by an employee, has no application to this claim. Kearney v. Hanlien, 149 App. Div. 524. It may be said generally, that at common law a servant assumes all the risks incident to his employment, after the master has discharged his duty of reasonable care to prevent them, and such other risks as are open and obvious to the servant. Eastland v. Clarke, 165 N. Y. 420, and cases cited. The inquiry here is whether the risks were of that obvious, open and apparent character
It is clear that the conditions which prevail here must limit the award to a moderate sum. Brougham’s age, meagre earning capacity and family circumstances must modify the recovery. The award Avill be $500.
Ackerson, P. J., concurs.
Ordered accordingly.