Batty v. Niagara Falls Hydraulic Co.

Adams, P. J.: This is not a case which calls for the application of the rule that a master is bound to use all reasonable efforts to make the place in which he places his servants at work reasonably safe. The “ place,” it is true, was a somewhat dangerous one, made so however, by the operation of nature and by the progress of the work in which the defendant was engaged; but this danger, such as it was, was perfectly obvious to Batty and his fellow-workmen. Unavailing efforts, it seems, had already been made to remove this rock or bad earth, and it was while starting up the bank by direction of his foreman for the express purpose of placing some planking in position to catch and hold the same and thereby to protect himself and his coemployees from the danger which threatened them, that Batty was killed. We think it very clear, in view of this established fact, that in the circumstances of this case the risk was either one which was assumed by Batty, or else one which related to the detail of the work in which he was engaged, and that in either event no liability attaches to the defendant for his death. ■ The Court of Appeals has recently in several instances laid down the rule which is applicable to- cases of this character. In Perry v. Rogers (157 N. Y. 251), which was a case where the place in which the plaintiff had been directed to work had become unsafe by reason of some overhanging rock caused by a blast, and no efort had l>een made to remove the same, it was held that whatever negligence there was in the omission to clean off the bench [469] and protect the plaintiff from the danger which threatened him from above, was the negligence of the defendant’s foreman, for which the master was not liable, as it was a mere detail of the work in which both the plaintiff and the foreman were engaged. The doctrine of this case was followed in Capasso v. Woolfolk (163 N. Y. 472), where an unsuccessful attempt had been made by the defendants’ foreman to remove a loose stone which had been left in a rock cutting as the result of a blast and subsequently fell upon and injured the plaintiff, who had been directed by his employer to work under the same. It was held that if such accident was occasioned by anybody’s negligence it was that of the foreman, who was a fellow-servant of the plaintiff, and that consequently the risk was one which the plaintiff assumed when he entered upon his employment. In a still later Case (Di Vito v. Crage, 165 N. Y. 378), which in many respects is quite analogous to the one under review, it was held that in an action' to recover damages for personal injuries, where it appeared that plaintiff had been in the defendants’ employment for several months and had been directed by their foreman to remove loose pieces of rock that should be found along a bank so as to render a continuance of blasting safe, and while engaged in so doing, a large stone, which had been thrown on top of the bank by a previous blast in the prosecution of the general work and had rested there until the .accident, and which the defendants had directed the foreman to remove, fell and striking the plaintiff caused the injuries complained of, a recovery could not be sustained, since they were the result of a risk which plaintiff assumed as an incident to the employment in which he was engaged, and if the result of any negligence it was that of the foreman, a fellow-servant, for which the defendants would not be responsible. Referring to the Perry and Gapasso cases, above cited, as authority for the statement, Martin, J., in his opinion declares that “ If the plaintiff’s injury had resulted from the falling of a loosened rock upon the side of the cliff, this case would clearly fall within the principle established by (those) cases and the judgment could not be sustained.” (Id. 383.) We think there is even less ground for a recovery by the plaintiff in this action than in either of those above cited, inasmuch as [470] her intestate lost his life while in the attempt to make a place safe •for his fellow-rworkmen. It would be an anomalous condition of affairs which would impose upon the master, as a consequence of his efforts to safeguard his employees, liability for an injury resulting to one of them, from the very danger which he was seeking to ■ avoid and which was perfectly apparent to the person attempting to remedy the same. Such a rule would require that the master must either personally take such steps as are necessary to protect his employees from dangers which confront'them or else run the hazard of being mulcted in damages for any accident which may result therefrom. The judgment appealed from should be affirmed. McLennan, Spring, Williams and Hisoook, JJ.,'concurred. Judgment affirmed, with costs. .