Obanhein v. Arbuckle

Hirschberg, J.: The learned counsel for the plaintiff admits that he can find no decision in point and my research has been equally unavailing. A recovery will depend upon the right of a servant to maintain an action in tort for damages resulting from negligence on the part of the master in failing to furnish safe tools and appliances where the servant having full knowledge of the defects is induced to continue work by the master’s promise to soon supply safe and proper tools and appliances and meanwhile indemnify the servant for any incidental injury. The question presented is whether in case of injury the action for damages must be on the contract or may be in tort. [466] Ho question is raised as to the sufficiency of the promise or as to the authority of the foreman by whom it is alleged that it was made to bind the defendant thereby. While the proof might perhaps be stronger and clearer in both respects, it will be assumed that it was sufficient to justify a finding by the jury that the promise was intended to include compensation for such personal injuries as the plaintiff has sustained, and that the foreman was duly authorized to make the promise on the defendant’s behalf. The injuries sustained by the plaintiff resulted from the use of a defective saw or saws in preparing lumber for the construction or repairing of a large sailing vessel, and at the time of the accident they had been used by him three or four weeks under constant complaint by him of their defective condition, met by as constant assurance from the foreman that new ones would be supplied at once, and that he would be “ taken care of ” in case of accident. That independently of the promise to take care of the plaintiff in the event of in jury no action would be maintainable may be conceded. (Hannigan v. Smith, 28 App. Div. 176 ; McCarthy v. Washburn, 42 id. 252 ; Spencer v. Worthington, 44 id. 496.) In the recent case of Rice v. Eureka Paper Co. (70 App. Div. 336) a thorough and discriminating examination of the conflicting authorities by Hr. Justice McLennan resulted in a decision by a majority vote that the mere promise by the master to remedy the defects complained of would not sustain a recovery since the servant would be deemed to have assumed the risk incident to the situation pending the fulfillment of the promise. Mr. Justice Spbing, however, writing for the minority, aptly suggested (p. 357) that if to the promise to repair or to supply safe machinery or tools the additional fact be added that the master told the servant that “if he would stay and work he, the master, would be responsible for any injuries sustained by reason of the defect,” the doctrine of assumption of risks would not be applicable. The contention of the defendant is that, conceding the making of the promise to indemnify, the sole remedy at law is an action upon contract for the breach, but that no action in tort can be maintained for the negligence in which the promise had its origin. It is true that the reciprocal duty to exercise care which is enjoined in the relation of master and servant is not in itself contractual, but is imposed by law ; but it is equally true as evidenced by the ground [467] of the decision cited that the sole reason why the servant has not been permitted to recover for the master’s negligence where he, the servant, was aware of its existence and of the consequences likely to result from it, is that the risk was assumed by him, and that the stipulated wages consequently constituted the only compensation for exposure to the risk which was contemplated by the parties. The effect of the master’s promise to pay damages in case of injury is a waiver of the right to assert as a defense the fact of the assumption of the risk by the servant, while at the same time it is tantamount to the actual assumption of such risk in respect to the financial consequences of his negligence by the master himself as the conscious wrongdoer. Certainly, the consequences apprehended by both are the consequences of the master’s conceded negligence in failing to fulfill a duty imposed upon him by law, and the plain assurance given to the servant is that if he will use the defective appliance in his master’s service until a safer one can be substituted, it shall be at the master’s risk so far as concerns the right to compensation for the neglect of duty which lies at the foundation both of the injury inflicted and of the remedial action. While there could be no recovery save for the promise, the recovery is not upon the promise, but because of the negligence which occasioned it. In other words, the gravamen of the action is the master’s negligence and not his promise to pay. Ho question of contributory negligence is involved, for want of care in the manner of using the defective appliance contributing to the accident would undoubtedly bar a recovery. But there is an essential difference between contributory negligence and the assumption of risks, which was pointed out in Dowd v. N. Y, O. & W. Ry. Co. (170 N. Y. 459, 470). The assumption of risks of service operates as a waiver of the negligence of the master, and the burden of proving such waiver rests upon the latter. He cannot successfully bear that burden where he has expressly agreed to compensate his servant for the injuries incident to the risk, especially where the risk has been created by his own conceded negligence. The standard of duty imposed by law in the different contractual relations of life varies in degree from ordinary care as in the relation of master and servant to extreme vigilance as in the case of common carriers of passengers for hire. In no case except [468] ing possibly that of the carrier of merchandise for hire is the duty absolute such as is involved in the obligation of an insurer or guarantor, yet in all cases failure of duty is regarded as actionable negligence. Were the standard of care in any given case so high or the measure of duty so exacting as to amount to an absolute insurance from personal harm, it would not be doubted that a negligent failure would constitute a tortious wrong. The case of insurance of property against fire, etc., is not analogous, for the insurance there is against the negligence of the insured and not of the insurer. But in this case, as has been seen, the promise does not amount to insurance against the servant’s negligence, but only to indemnity so far as concerns the results of the master’s negligence alone. While the legal rule of liability imposes on him no higher duty than that of exercising ordinary care, he would unquestionably be liable in an action for negligence if the law enjoined on him the higher duty of an insurer or guarantor of his servant’s safety, and it is difficult to see why he may not logically be also liable in an action for negligence where he voluntarily becomes in some degree the insurer or guarantor of such safety by the precise terms of the contract of employment. The learned trial justice dismissed the complaint upon the theory that an action for breach of contract alone would lie, ordering the exceptions to be heard at the Appellate Division in the first instance, and while the question presented is novel, and by no means free from doubt, it follows from the view taken that the plaintiff’s exceptions should be sustained, and his motion for a new trial granted. Goodrich, P. J., and Bartlett, J., concurred; Jenks, J., concurred in separate opinion; Woodward, J., read dissenting opinion.