Batty v. Niagara Falls Hydraulic Power & Manufacturing Co.

ADAMS, P. J. This is not a case which calls for the application of the rule that a master is bound to use all reasonable efforts to make the place in which he places his servants at work reasonably safe. The “place,” it is true, was a somewhat dangerous one, made so, however, by the operation of nature and by the progress of the work in which the defendant was engaged; but this danger, such as it was, was perfectly obvious to Batty and his fellow workmen. Unavailing efforts, it seems, had already been made to remove this rock or bad earth, and it was while starting up the bank by direction of his foreman for the express purpose of placing some planking in position to catch and hold the same, and thereby to protect himself and his co-employés from the danger which threatened them, that Batty was killed. We think it very clear, in view of this established fact, that in the circumstances of this case the risk was either one which was assumed by Batty, or else one which related to the detail of the work in which he was engaged, and that in either event no liability attaches to the defendant for his death. The court of appeals has recently in several instances laid down the rule which is applicable to cases of this character. In Perry v. Rogers, 157 N. Y. 251, 51 N. E. 1021,—which was a case where the place in which the plaintiff had been directed to work had become unsafe by reason of some overhanging rock, caused by a blast, and no effort had been made to remove the same,—it was held that whatever negligence there was in the omission to clean off the bench, and protect the plaintiff from the danger which threatened him from above, was the negligence of the defendant’s foreman, for which the master was not liable, as it was a mere detail of the work in which both the plaintiff and the foreman were engaged. The doctrine of this case Was followed in Capasso v. Woolfolk, 163 N. Y. 472, 57 N. E. 760, where an unsuccessful attempt had been made by the defendant’s foreman to remove a loose stone which had been left in a rock cutting as the result of a blast, and subsequently 'fell upon and injured the plaintiff, who had been directed by his employer to work under the same; it was held that, if such accident was occasioned [736] by anybody’s negligence, it was that of the foreman, who was a fellow servant of the plaintiff; and that, consequently, the risk was one which the plaintiff assumed when he entered upon his employment. In a still later case (Di Vito v. Crage, 165 N. Y. 378, 59 N. E. 141), which in many respects is quite analogous to the one under review, it was held that, in an action to recover damages for personal injuries, where it appeared that plaintiff had been in the defendants’ employment for several months, and had been directed by their foreman to remove loose pieces of rock that should be found along a bank so as to render a continuance of blasting safe, and, while engaged in so doing, a large stone, which had been thrown on top of the bank by a previous blast in the prosecution of the general work, and had rested there until the accident, and which the defendants had directed the foreman to remove, fell, and, striking the plaintiff, caused the injuries complained of, a recovery could not be sustained, since they were the result of a risk, and which plaintiff assumed as an incident to the employment in which he was engaged, and, if the result of any negligence, it was that of the foreman, a fellow workman, for which the defendants would not be responsible. Referring to the Perry and Capasso Cases, above cited, as authority for the statement, Martin, J., in his opinion, declares that: “If the plaintiff’s injury had resulted from the falling of a loosened rock upon the side of the cliff, this case would clearly fall within the principle established by [those] cases, and the judgment could not be sustained.” Page 383, 165 N. Y., and page 143, 59 N. E. We think there is even less ground for a recovery by the plaintiff in this action than in either of those above cited, inasmuch as her intestate lost his life while in the attempt to make a place safe for his fellow workmen. It would be an anomalous condition of affairs which would impose upon the master, as a consequence of his efforts to safeguard his employés, liability for an injury resulting to one of them from the very danger which he was seeking to avoid, and which was perfectly apparent to the person attempting to remedy the same. Such a rule would require that the master must either personally take such steps as are necessary to protect his employés from dangers which confront them, or else run the hazard of being mulcted in damages for any accident which may result therefrom. The judgment appealed from should be affirmed. Judgment affirmed, with costs. All concur.