Peet v. H. Remington & Son Pulp & Paper Co.

Adams, P. J. : We think that the refusal to nonsuit constitutes error which requires a reversal of the judgment and order appealed from. The action is one of negligence, the particular act complained of,, and'the only one alleged in the plaintiff’s complaint, being that the-defendant, in its relation of master to the plaintiff, was' unmindful of its duty, in that it omitted to provide the latter with a safe and. proper place in which to perform the work required of him. A very careful examination of- the voluminous record in the case fails to disclose any evidence which, in our opinion, will support a verdict based upon this theory. Indeed, the learned trial, court, in-denying the defendant’s motion for a nonsuit, took occasion to say that, “ so far as the place where the plaintiff was injured was concerned, it was reasonably safe, and the master had done his full duty in that regard,” and subsequently, in submitting the case.to the jury, this statement was reiterated in substantially the same language. The place itself certainly was a reasonably safe one. So far as the evidence discloses there was nothing complex or hazardous, about its construction, its condition or its appurtenances. No one had ever been injured there before, and the plaintiff’s witnesses, Ostrander and Ashcraft, testified that, with the doors in the saw room closed and the hole-in the floor covered, it was impossible for a stick of wood to foil out into the grinding room. What, then, is there in the case which charges the defendant with liability for the accident which befell the respondent’s intestate ? If we correctly apprehend the contention of .the learned counsel for the respondent, and the theory upon which the case was finally [105] submitted to the jury, it amounts to this: That even conceding the “ place ” to have been a reasonably safe one in its original state, it was permitted to become unsafe through the failure of the defendant to close the doors leading into the saw room or to take proper precautions to see that they were closed while Peet was at work in* the grinding room, but we hardly think this contention will find: any support in the law relating to master and servant, as we understand it. It was testified by both of the witnesses to whom reference has-just been made, and in this respect they were amply corroborated by other evidence in the case, that it was the business of the man-who threw the wood down into the grinding room to open and close-the door and to uncover the hole in the floor and replace the plank when he had finished his labors. This duty, therefore, was but a, mere detail of the work which belonged to the servant, and not. necessarily to the master to perform, and if by reason solely of the-former’s omission to properly perform the same, the place where the-respondent’s intestate was obliged to work was made dangerous,, the master was not chargeable. (Hussey v. Coger, 112 N. Y. 614 ; Smith v. Empire Transportation Co., 89 Hun, 588 ; Foley v. Brooklyn Gas Light Co., 9 App. Div. 91; Ludlow v. Groton, Bridge & Mfg. Co., 11 id. 452.) Now, we think it satisfactorily appears in the present case that it was the- respondent’s own witness and co-employee, Ashcraft, who-was responsible for the condition of things which changed the* grinding room from a safe to an unsafe place, if any such change can be said to have occurred; for he testified that, just before he quit work, that is, at about half-past five or six o’clock on the night of the accident, he went up into the saw room and threw down-enough wood to enable Peet to run three or four hours, and that although it was his duty to close the doors, he did not remember whether he left them open or closed. So far as appears, this witness was the last person in the saw room prior to the accident, unless,, as is stated by several of the defendant’s witnesses, Peet himself went there during'the night to replenish his wood pile; and the only inference fairly dedueible from all the evidence in the case is that one of these two persons must have left the doors open. Peet insisted that he did not go there until after he received his injury, and as the jury [106] ¡appear to have accepted his statement as true, it must.be assumed, we think, that the failure to. close the doors was the negligence of .Ashcraft, a fellow-servant, and that consequently within the rule to which we have adverted, no blame for such omission attaches to the .master. Any other assumption to account for the open doors would 'be founded upon conjecture merely, and would be without any probative evidence to sustain it. But while little effort is made to account for the open doors upon ¡any other reasonable theory, the rule of inspection is invoked, and it is claimed that if the defendant’s superintendent Shufty had properly performed his duty he would have discovered that the •doors had been left open in time to have prevented the accident. It- is true that among the superintendent’s duties was that of going -through the mill between four and six o’clock every afternoon “to -see that everything was all right,”, and he testified that on the day -of the accident he performed this duty. He was unable to state just when he was in the saw room, but he does state that when there he saw that the doors were closed and that the plank was in its proper place, and there is nothing in the case save the fact that the •doors were open when the accident occurred to contradict him. We think, therefore, that it cannot be asserted that there was any. -failure of the duty of inspection without extending the rule beyond reasonable limits; for it must be borne in mind that if Ashcraft left the-doors open he did so just before the time for work in the ¡-saw room ceased, and in view of the circumstances of this case, the nature of the duty omitted by Ashcraft, and the little reason there was to have anticipated any serious consequences to have resulted therefrom, we hardly think it will answer to place the respondent’s right to recover upon the defendant’s omission of its -duty of inspection. This duty is one which must be enforced in a reasonable manner, ¡and like the obligation of a master to provide a reasonably safe place for his servants to work in, it is one which does not require -unceasing and impracticable performance. (Perry v. Rogers, 157 N. Y. 251.) There are several exceptions to the charge of the learned court ¡and to its refusal to charge in compliance with the requests, of the •defendant’s counsel, which in our judgment present very serious [107] -questions, but inasmuch as we have reached the conclusion upon the merits that the verdict of the jury cannot stand we do not deem it necessary to consider them more particularly. The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide event, upon questions of law only, ,the facts having been examined and no error found therein. All concurred. Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts Laving been examined and no error found therein.