Bria v. Westinghouse, Church, Kerr & Co.

Gaynor, J.: The only question submitted to the jury was whether the defendant had used due care to furnish the plaintiff a reasonably safe place to work. The learned trial Judge charged the jury, in substance, that if the plaintiff knew and understood the risk of danger of stones rolling or sliding down the pile he could take such risk, and it was for the jury to say whether he had done so by going at the work and continuing at it, and that if lie had he could nof recover; also that he assumed all risk of danger incident to his work, “ assuming that, the master exercised reasonable care in making the place reasonably safe”. Not satisfied with this' the learned counsel for the plaintiff induced the learned trial J udge to charge the' following request: “I ask your honor to charge,, in connection with the charge as to the assumption of the risks incident to the employment, that the plaintiff in this case only assumed such risks that might be incident to the nature of his employment after the defendant had' fulfilled the duty imposed upon it by law to furnish him with a reasonably safe place in which to work”. This was error. The very question was whether the plaintiff had assumed the risk of the danger of his place caused by the failure of the master to use reasonable care not to create such danger or permit it to continue. The very doctrine of assumption of risk by a servant has reference to risks which exist by the negligence of the master, i. e., by his failure to use reasonable care. 'It is out of such negligence of the master that the question of assumption of the risk by the servant arises. Except there be negligence of the master which makes him liable unless the servant assumed the risk arising from such negligence, the question of such assumption cannot arise — there is nothing for it tó rest on (Mansell v. Conrad, 125 App. Div. 634). [348] ■There are certain risks inherent in' certain employments, and whicli cannot be lessened or removed by any care of the employer. It"is-■a common expression -to say that the servant “assumes” these-risks, by which is meant the strictly accurate, statement .that the ■law casts them upon him, and that the master is not responsible for them. It is risks arising out of the lack of care of the master towhicli the doctrine of assumption of risks by the- servant applies and unless the master, be found negligent, such doctrine has no application to the case. By charging that the plaintiff assumed no-risks until the master fulfilled his duty of furnishing :a sáfe place, the right of the jury to. find that the plaintiff assumed the risk caused by the failure of the master to dó so was taken away; and that is the -only question- there was in the case. . If the danger was one incident to the details of the work as it progressed, the question wás not one of furnishing .a safe place, but of carrying on the work in a safe manner, or on a safe plan ; but. we have to take the case, on the basis on which it was tried and sent to the jury. ' The judgment should be reversed. Rich, J.,. concurred; Woodward, T.,. concurred in separate memorandum; Tenes and Bure, TT., concurred in result.