Broadbent v. New York Evening Journal Publishing Co.

Rich, J.: It is impossible to avoid the conclusion that the plaintiff knew of the smooth and slippery condition of the passageway upon which he fell. It is established by the testimony of his own witnesses that the condition he complains of had existed for years; that there were no hidden defects but merely the smooth, slippery surface of the floor caused by tracking of oil by defendant’s employees, which was perfectly obvious to the most ordinary observer. The fact that the action is brought under the Employers’ Liability Act is of no materiality in determining the question of plaintiff’s contributory negligence. That statute does not relieve an injured person from the exercise of proper care. It provides that an action under its provisions can only be maintained when the person injured is exercising due care and diligence at the time of his injury. (See Laws of 1902, chap. 600, § 1; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200; since amd. by Laws of 1910, chap. 352.) The modification of the doctrine of contributory negligence provided by section 3 of the statute relates only to the question as to . whether the employee’s continuance in the employment after knowledge of the conditions causing the injury amounts to contributory negligence of itself, which is made one of fact subject to the power of the court to set aside a verdict which is contrary to the evidence. (Kennedy v. New York Telephone Co., 125 App. Div. 846; Roche v. India Rubber, etc., Co., 115 id. 582; Wilson v. New York Mills, 107 id. 99; Chisholm v. Manhattan R. Co., 116 id. 320; Lester v. Crabtree, 125 id. 617; Faha v. Wynkoop, Hollenbeck & Crawford Co., 72 Misc. Rep. 391.) It [137] was incumbent upon, the plaintiff, before he was entitled to recover, to establish affirmatively that, at the time of the accident, he was using “due care and diligence.” In other words, was free from contributory negligence. The only evidence he gave on this subject was: “I was walking in the ordinary way; at the ordinary gait.” This does not meet the legal requirement. With full knowledge of the condition of the passageway, he made no use of the handrail provided by the defendant for the use of its employees to prevent just such accidents, and took no precaution to avoid slipping. He failed to exercise a degree of care commensurate with the condition he knew to exist, and the complaint. should have been dismissed at the close of the evidence. (Bauer v. Empire State Dairy Co., 115 App. Div. 71; affd. without opinion, 191 N. Y. 547; Lofsten v. Brooklyn Heights R. R. Co., 184 id. 148; McCarthy v. Emerson, 77 App. Div. 562; Foster v. N. Y. C. & H. R. R. R. Co., 2 How. Pr. [N. S.] 416; Leinkauf v. Lombard, 137 N. Y. 417, 425, 426.) While the Employers’ Liability Act makes the question of assumption of risk,, and whether plaintiff’s continuance in employment with knowledge of the conditions resulting in his injury amounts to contributory negligence, questions of fact in the first instance to be submitted to the jury, the veidict rendered is subject to the usual power of the court to set it aside if it be contrary to the evidence. (See Laws of 1902, chap. 600, § 3; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 202.) The- plaintiff’s contributory negligence was established, and the evidence shows that he assumed the risk of injury in continuing to use the passageway with knowledge of its condition and without adequate precaution. (Welch v. Waterbury & Co., 136 App. Div. 315; Kline v. Abraham, 178 N. Y. 377; Dorney v. O’Neill, 34 App. Div. 497; Vaughn v. Glens Falls Cement Co., 105 id. 136; Kiernan v. Eidlitz, 115 id. 141.) The jury rendered their verdict for the plaintiff against the plain weight of the evidence, and it was error upon the part of the learned trial justice to refuse to grant the defendant’s motion to, set aside the verdict, and it follows that the judg [138] ment and order must "be reversed and a new trial granted, costs to abide the event. Jenks, P. J., Burr, Thomas and Woodward, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.