Bellegarde v. Union Bag & Paper Co.

Kellogg, John M., J.

The plaintiff was an employee of the defendant, engaged in assisting in the construction of an addition to the defendant’s storehouse at Ballston Spa, and he and another, under the direction of one Gregg, as foreman, by a gin or shears, were lifting timber from the ground into an upper story. The gin was unsupported in front, and when the timber was lifted up to the building, and was being moved back into the building by means of a “ dolly ” or roller passing between the legs of the gin, the gin fell back into the building and hit and injured the plaintiff. Sufficient ropes were furnished by the defendant to properly stay the gin, but it was deemed unnecessary by the foreman to secure it otherwise.

It was practically assumed upon the trial that no recovery could be had in this case except under the employers’ liability act, and the notice provided by that act was served. The jury brought in a verdict for the plaintiff for $1,000. Upon this motion to set aside said verdict, and for a new trial upon the minutes of the court, it is urged that the court erred in instructing the jury that the plaintiff was to be deemed upon the premises of the defendant by its invitation. The language of the statute is peculiar, and there is some reason for saying that as it provides the employee shall have the same remedies against the employer “ as if the employee had not been an employee of nor in the service of the employer, nor engaged in his work,” it has placed him in the position of a stranger, and as upon the premises without invitation. If that were the proper construction the act does not benefit the employee. Its declared object is “ to extend and regulate the liability of employers,” and section 5 provides that every existing right of action for negligence is continued, and nothing in the act shall be construed as limiting any such right of action. As a matter of fact the plaintiff was upon the premises by the invitation of the master, and was his employee engaged in his business for the mutual advantage of the master and himself. The statute requires, for the better protection of the employee, that we shall overlook the fact that he is an employee, or in the master’s service or engaged in his work, so that the negligence of a superintendent shall not be imputed' to him as that of a coservant; but it does not purport to change, nor can it change the fact that he is not upon the premises as- a sightseer, an interloper or a trespasser, but is there for the defendant and at his request. It would be too technical a construction of the statute for the court to turn the plaintiff into a trespasser of an interloper when he is upon the premises for a legitimate and proper purpose and for the benefit of the defendant.

The motion to set aside the verdict and for a new trial is, therefore, denied. Sixty days additional time is given in which to make a case if an appeal is seasonably taken.

Motion denied.