Heilback v. Consumers' Brewery of Buffalo

Werner, J. This case very forcibly illustrates the vicissitudes of this class of litigation. Although the plaintiff’s injuries were most serious and distressing, two juries disagreed as to his right to recover. A third jury gave him a verdict which was sustained at the Appellate Division by a bare majority of the justices. The case is now before us on defendant’s further appeal and we feel constrained to agree with the two dissenters in holding that the plaintiff has failed, as matter of law, to establish a cause of action. 1. We think the plaintiff failed to establish negligence *138 on the part of the defendant. The evidence plainly indicates that the accident was caused, not by any defect in the pipe or in its fastening, but by being tom from its place by a load of hay of unusual weight and height. This load of hay had been ordered in the usual way, without any knowledge on the part of the defendant’s manager as to its weight or size. For years before the accident, hay had been ordered and received in the same manner, always being weighed on these scales without any difficulty. An average of two loads a week were thus received, weighed and unloaded, and always under the supervision and with the assistance of the plaintiff, for that was part of his regular work. Not once had the plaintiff ever suggested to his superiors that this pipe created any difficulty or danger in the weighing of hay; nor does the evidence disclose anything as to the location of the pipe or the character of its fastenings that would put an employer of ordinary care upon notice. The situation was one, moreover, which called upon the plaintiff to notify the defendant if it developed elements of danger, because if it was apparent to any one it must have been so to the plaintiff whose work constantly brought him in contact with it. A simple illustration will disclose the reason of this rule. If one of the defendant’s horses had developed vicious habits in the stable, no one would have known it better than the plaintiff, whose duty it was to care for them. Manifestly the defendant’s officers could only obtain information of such a condition from the employee who was familiar with it. The actual occurrence is not different in principle. If there was anything about the location or the condition of the pipe which rendered it dangerous for those who had to do with the weighing of hay, the plaintiff knew more about it than anyone else, and his failure to bring his knowledge to the attention of his employer absolves the latter from liability. There had been a previous occasion, it is true, when the pipe had been torn" from its fastening by a long mir *139 ror which was part of a load of bar fixtures that had been drawn through the scale house. That was an exceptional occurrence, however, which has no direct bearing upon the circumstances in which the plaintiff was injured, for there is nothing in the record to indicate the height of the mirror or its location on the load of which it formed a part. In that connection it is to be remembered that the pipe did not then fall, but was simply moved out of the bracket or arm upon which it rested, and it was at once put back into place by the defendant’s assistant engineer and fastened with wire. This employee assured the plaintiff that it was then safe, and there is nothing in the record to indicate that it was not so. Nor is there any evidence which even tends to show that on the day of the accident the fastening was not as good as it was when made. 2. If the situation was one from which a reasonably prudent man should have apprehended danger, the plaintiff was guilty of contributory negligence as matter of law. Since this is a case under the common law, this question must he dealt with under common-law rules. For three years it had been a part of the plaintiff’s regular work to attend to the weighing and unloading of hay which, as already stated, averaged two loads a week. These loads differed in size and weight, but never before this accident had there been any trouble. This particular load was so much larger than the usual one that it must have been obvious to the plaintiff. There is testimony to the effect that it was the largest load ever received, and the sequel proves that it was so large and heavy that the team could not back it out of the scale house. Instead of doing the obviously safe thing by taking off a part of the load, the plaintiff and the driver decided to attach the team to the rear end of the wagon and thus pull it backwards out of the scale house. As a part of this arrangement the plaintiff bestrode the pole for the purpose of steering, and this was the position he was in *140 when the pipe fell upon him. It is plain to a demonstration that the hay must have dislodged the pipe, and that the pipe could not have fallen upon the plaintiff until the load had passed from under it. This was a situation, not only unusual and unforeseen, but one created wholly by the plaintiff and the driver, without the knowledge of the defendant or its officers. Unfortunately for the plaintiff, this imposes upon him a choice of alternatives either of which is fatal to his suit. If the conditions were not such as to suggest the probability of danger to a person of reasonable prudence, the defendant cannot be charged with negligence; and if the contrary is true, then the plaintiff was plainly guilty of contributory negligence, for he knew more about it than anyone else. One of the grounds upon which the dissenting judges in the Appellate Division placed their votes, was that the plaintiff had assumed the risk of the conditions which resulted in the accident to him. We shall not discuss that question at length. The same evidence which serves to establish the plaintiff’s contributory negligence also shows that any risk which may have existed was assumed by the plaintiff, for he not only knew of it, but failed to advise his employer of it. And lest this point may not have been stated with entire clearness, it may be well to repeat that the pipe itself was not in a dangerous position, nor was it improperly fastened. The only danger was one which might arise from the kind of loads that were taken in or out of the scale house. Hay seems to have been the only product that was usually loaded in such a manner as to reach anywhere near the pipe. There was, of course, the single load of barroom furniture to which reference has been made; but if any previous load of any character was of such height as to suggest danger, that was as apparent to the plaintiff as anyone else. Especially true is this of the hay, for he could not have worked there three years without knowing whether there was danger in drawing such loads under this pipe, and if *141 this practice was attended with risk he assumed it so long as he did not bring it to the attention of the defendant. At common law, one who voluntarily enters into or continues in service without objection or complaint, having knowledge or the means of knowing the danger involved, is deemed to have assumed the risk. (Dillon v. Natl. Coal Tar Co., 181 N. Y. 215.) The cases cited by counsel for the plaintiff do not help him. There is a well-defined and logical distinction between an employee who is perfectly familiar with a dangerous situation which he may have helped to create, and a wayfarer upon a public highway who is. injured by defects or obstructions of which he has no knowledge. The cases relied upon to sustain this judgment belong to the latter class. (Sewell v. City of Cohoes, 75 N. Y. 45; Embler v. Town of Wallkill, 57 Hun, 384; affd., 132 N. Y. 222; Gubasko v. Mayor, etc., 12 Daly, 183, and others.) The judgment should be reversed and a new trial granted, costs to abide the event. Cullen, Ch. J., Gray, Willard Bartlett, Hiscock, Chase and Collin, JJ., concur. Judgment reversed, etc.