Shields v. Robins

Williams, J.: The complaint hardly alleges as ground of negligence the failure of defendant to comply with any statutory duty imposed upon him to provide a roof or cover for the elevator as directed by the inspector of buildings. But even if the pleading was sufficient to enable him to litigate that question, still the evidence taken all together was insufficient to support a recovery upon such a theory. The plaintiff knew there was no roof or cover to the elevator, and continuing in defendant’s employ, and using the elevator with such knowledge, he assumed the risks incident to the use of the elevator as it was, and waived the performance of the duty by the defendant, to furnish such appliance whether required by the statute or inspector of buildings or not. (Freeman v. Glens Falls Paper Mill Co., 70 Hun, 531; affd., without opinion, 142 N. Y. 639; Knisley v. Pratt, 75 Hun, 323; reversed, 148 N. Y. 372.) These [586] cases effectually dispose of several decisions of General Terms in the State to the effect that an employee cannot be held to have assumed the risks incident to the use of defective appliances, where the employer has failed to comply with provisions of the statute, but where the actual condition of the appliances is known to the employee. (See, also, Marsh v. Chickering, 101 N. Y. 396.) There could, therefore, be no recovery here for the negligence of the defendant in failing to put a roof or cover over the elevator. This defect was obvious, and was well known to the plaintiff, and he voluntarily assumed the risks incident to the use of the elevator without this appliance. The only question remaining is whether, under the evidence, the jury could properly have found negligence, on the part of the defend-' ant, which caused the accident, with reference to the construction or condition of the lower door of the hatchway or scuttle in the roof closing from below and the ladder leading to it from the upper floor. The only defects that could be complained of were in the manner of fastening the doors and the greasy and slippery condition of the ladder. It is doubtful if these defects could be said to have been the proximate cause of the accident. The defendant suggested that the proximate cause of the accident was the carelessness and negligence of McDowell, the co-employee of the plaintiff, and that, therefore, no recovery could be had. We think this is hardly an answer to the plaintiff’s theory of negligence. Even if it was found that McDowell was negligent, still the question would remain, whether the accident would have occurred but for the negligence of the defendant himself, as to the construction and condition of the door and ladder. If it would not, then the defendant would be liable notwithstanding the negligence of McDowell may also have contributed to the accident. This question would have been one of fact for the jury. The appliance for. fastening the door and the greasy and slippery condition of the ladder might well have been found by the jury'to be defective and dangerous, and if the accident had resulted directly from such defective condition, they might have been found to have been the proximate cause of the, accident. It is said that the direct result of these defects was the dropping by McDowell of the oaken mallet. The mallet dropped upon the floor below, and bounding, happened to go down the elevator shaft. If [587] it had bounded in any other direction, or the trap door of the elevator shaft on the upper floor had been closed, or there had been a cover or roof over the elevator, no injury would have resulted to the plaintiff. It is doubtful, under these circumstances, if it could properly be said that these defects were so directly connected with the accident that they were the proximate cause thereof. It seems to us, however, that it must be said that these defects were obvious, and were known to the plaintiff to exist, and that, under the rule hereinbefore referred to, he must be held to have assumed the risks' incident to the use of the door and ladder as they were. They were open to observation, and the position of the plaintiff, his employment, and the duties performed by him after the occupation of the building, were such as would fully apprise him of the condition of the door and ladder as they actually existed. We are of the opinion, therefore, upon the whole case that the complaint was properly dismissed by the trial court, and that the judgment should be affirmed, with costs. Yah Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred. Judgment affirmed, with costs.