O'Neil v. Karr

Smith, J.: That under the common law an employee assumes the obvious risks of an employment will hardly be questioned. This plaintiff had knowledge of the fact that these blasts were not covered. He knew the danger as he sought protection whenever warned that a blast was to be fired. A master at common • law owes no duty to his employee to use. the most approved methods. An employee., with full knowledge of the methods used, may accept or decline the service, and if the service be accepted he has no legal complaint to make of his employer for injury caused by the neglect to use such improved methods. The learned trial judge recognizing this rule of common law allowed this case to go to- the jury and has denied defendant’s motion for a new trial upon the ground that this action is no longer controlled by the common law. He has held that by chapter 600 of the Laws of 1902 in an action brought either under the statute or at common law a servant is not deemed to have assumed the obvious risks of his employment unless the master has used due care to provide safe appliances for his use and that in all cases the question of whether the servant has assumed the risk of the employment is a question of fact for the jury and cannot be determined as matter of law by the court. This was the interpretation of the statute given by the Appellate Division, first department, in the case of Ward v. Manhattan R. Co. (95 App. Div. 437). In that case it was in effect said that if an employee would take advantage of the enlarged liability prescribed by section 1 of the act he must serve the notice prescribed by section 2 thereof; that the benefit of the enlarged liability created by section 3 of the act, however,, was given to him whether or not he had served the notice required by section 2. This was purely dictum, however, as it was not necessary to the decision there made. By section 1 of that act it is provided that where personal injury is caused to an employee who is himself in the exercise of due care ■and diligence at the time (1) by reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owjng to the 'negligence of the émployer or of any person in the service of the employer and intrusted by him [574] with the duty of seeing that the ways, works or machinery -were in proper condition ; (2) by reason of the negligepce of any superintendent tif the employer, the employee, or in case of death, his executor or administrator should have a right of action. In the 2d section it is provided that no action for recovery of compensation for injury or death under this aet shall be maintained, unless notice of the time, place- and cause of the injury is given to the employer within 12Ó days and the action is commenced within one year after the occurrence of the accident causing the injury or death. Provision is then made for the service of the notipe. In section 3 it is provided than an employee, by entering upon or continuing in the service of the employe^, shall be presumed to have assented to the necessary risks of the occupation, and no others. Necessary risks are then defined'as including those risks, and. those only, inherent in the nature of the business “ which remain after the employer has exercised due care in providing for the safety of his employees * * *.» jq js tpen provided fhat in an action maintained for the recovery of damages for personal injuries if an employee continues in the service of the employer after discovery of the danger the employee shall not as matter of law be deemed to have assented to and assumed the risk, but that such question shall be for the jury to determine, and it is further provided that an employee or his legal representative “shall not be entitled under this act” to any right or remedy against the employer where such employee knew of the defect and failed to,give notice thereof unless the employer or his superintendent had such knowledge pi/ior to the injuries to' the employee. By section "4 it is provided that an employer who shall have contributed to an insurance fund to indemnify his employees for personal injuries may mitigate damages in proportion to his contribution. By- section 5 it is provided that all existing rights of action for negligence or to recover damages for injuries resulting in death are continued notwithstanding the failure to give such notice. It is' true that section 3 has in it some general expressions which might at first seem to make it applicable to all actions whether. at common law or under this act. But no single section of an act can be separated from the rest and alone construed. ■ This act must be read as a whole. In section 2 it is provided: “ No action for recovery [575] of compensation for injury or death under this act shall be. maintained unless notice of the time, place and cause of the injury is given to the employer- * * This provision of the statute does not require notice to be given in an action for injury or death under the 1st section of the act but under the act itself, which inclxides all the sections, and the conclusion would seem to me to be irresistible that by force of this 'danse one who would seek any of the benefits of this act must give the notice required by the act. Whether the recovery is sought for an increased liability under section 1 or section 3, the action is in either case brought under the act and by the terms of section 2 quoted the notice therein specified is required to be served. That this construction is the true one would seem to be indicated by the provision in section 3 itself, which provides that an employee or his legal representative shall not be entitled “ under this act” to any right of compensation or remedy against the employer where such employee knew of the defect or negligence and failed to give notice thereof unless the employer or his superintendent had equal knowledge thereof prior to the injuries to the employee. If this act were separable this provision should read that an employee or his legal representative shall not be entitled u/nder this séction of this act to any right of compensation, etc. The reading of the section itself thus indicates that the act is not separable but is entire and was so regarded by 'the. Legislature when the act was passed, .and its benefits are given to those who comply with its condition of notice given. Again, this act is in derogation of the common law. _ The liability of the master is increased. In Gmaehle v. Rosenberg (178 N. Y. 152) Judge Cullen, in discussing this act, says: “The Legislature deeming that by the act it was about to extend the liabilities of masters to their servants (to what extent they effectuated this pur.póse it is unnecessary now to determine) thought it wise ’to safeguard the new liabilities by requiring that notice should be given the master of the accident for which it was sought to recover compensation. But it was only the new or extended liability that it was intended to subject to such safeguard. This intent is clearly expressed when the Legislature limited the requirement for notice to actions for injuries or death ‘under this act.’ ” In the case cited the question decided was whether the common-law- action of npgli [576] gence survived the statute, The quotation, however, calls sharp attention to the nature.óf the statute as one increasing the liability of the employer-, safeguarding the same by the notice required by section 2. An increased liability without the giving of such notice should not he found in.-doubtful phrases, as authority is not needed to the proposition that a statute increasing liability in derogation of the common law must receive a. strict construction. . - Wé do -not agree, therefore, with the construction of the statute found in the Ward case above cited. As this plaintiff continued in' defendant’s employ with fnl-1 knowledge of the 'dangers incident. thereto, he must be-held to have assumed the risks. The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. All, concurred,, except Kellogg,. J., dissenting in opinion*, in which Ohesteb,. J., concurred: .