Perry v. Rogers

• Decision Date: 22 November 1898
• Citation: 51 N.E. 1021,157 N.Y. 251
• Parties: PERRY v. ROGERS.
• Court: New York Court of Appeals Court of Appeals

157 N.Y. 251

51 N.E. 1021

PERRY

v.ROGERS.

Court of Appeals of New York.

Nov. 22, 1898.

Appeal from supreme court, general term, Second department.

Action by John Perry against John C. Rogers for personal injuries. From a judgment, in favor of plaintiff, affirmed by the general term (36 N. Y. Supp. 208), defendant appeals. Reversed.

O'Brien, Bartlett, and Vann, JJ., dissenting.

Thomas S. Moore, for appellant.

F. W. Catlin, for respondent.

PARKER, C. J.

We think this judgment must be reversed, because it does not appear that the injury sustained by the plaintiff was due in any degree whatever to the omission of the defendant to perform any duty which, as master, he owed to his servant, this plaintiff. The learned trial judge submitted the case to the jury upon the theory that there was some evidence tending to show that the defendant omitted to perform the duty the law charges upon all masters of furnishing a reasonably safe place in which the servant may work. But an examination of the evidence will show that it furnishes no support whatever to this view. Let us examine it. In July, 1894, the defendant, in pursuance of a contract with the city of New York, was engaged in cutting down a ledge of rock on the bank of the Harlem river, work necessary to be done in order to construct the speedway. At the time the defendant commenced the work this ledge of rock rose about 100 feet above the surface of the water, and the face of the rock was nearly at right angles with the river. The means employed in removing this rock were drilling and blasting. The work was commenced by drilling with steam drills a large number of holes 20 feet deep on the top of the bank, and about 8 or 10 feet from the edge. In these holes an explosive was placed, and the explosion resulted in shattering the rock, and throwing out most of the fragments for a space of about 30 feet in length, 20 feet in depth, and from 8 to 10 feet in width. The place thus cleared out was called a bench. Upon the seat of the bench, after an explosion, was left, necessarily, a large amount of stone, both fine and coarse, and about its sides and back would sometimes be left fragments of stone that had been partially, but not wholly, torn from their resting places by the force of the explosion. In order to provide a reasonably safe and convenient place for the steam drillers to prosecute their work requisite to the blasting out of a bench still lower down, it became necessary to clean from off the bench created by the last blast the stone and dirt that had settled there after the explosion, and men were required to climb up on the bench, and so clean it off. Down at the bottom of the cliff there were some men, called ‘hand drillers,’ who were at work making openings for explosives at about the height above the river required for the foundation of the speedway. That was the principal work of this defendant, but he was also required, when called upon by the foreman, to do the work of a ‘mucker,’ a name given to those who shoveled off the stone and dirt that accumulated on the benches after explosions. On the 19th day of July, 1894, the plaintiff was directed by one Bundy, who was the foreman in charge of the men, to go up on the bench, which was then about 40 feet above the roadway, in company with Washington and Davis, for the purpose of cleaning it off. While the plaintiff was thus engaged, a large stone fell out of the wall, at a place six or seven feet above the seat of the bench, struck plaintiff's leg, and crushed it so badly that it had to be amputated between the knee and the ankle.

While there was evidence tending to show that the plaintiff was actually prying out smaller stones that constituted the foundation of the stone that fell upon him, and thus it was caused to fall by his own act, there was also evidence pointing in the other direction, and, therefore, we must assume that it fell without being touched by the plaintiff, and that the cause of the accident was a blast that took place some two or three days previously. At that time the master was not present. A man named Ryan was the superintendent of the whole work, and Wilbert Bundy was the foreman in charge at this point. Now, let us see what are the master's duties. He must provide a reasonably safe place in which the servant may prosecute his labors; not a ‘safe place,’ as the learned court said in charging the jury. The law is reasonable, and does not require impossibilities, and work along any part of the face of this precipice of 100 feet in height could not, in the very nature of things, be in a safe place. In addition to the dangers of the situation, there were those incident to the use of high explosives, which were required to throw out such large quantities of rock. The master could not provide a place other than the precipice itself in which to prosecute this work. The next step was to furnish proper appliances, and it is conceded that he did so. His third duty was to employ competent and skillful men to work with this plaintiff in the discharge of the hazardous employment in which all were engaged, and the competency of the other servants of the defendant is not at all questioned. The rules referred to are those that point out the duties a master owes to a servant such as this plaintiff was, and we readily see it has not been made to appear that the defendant failed to perform any duty. But the learned trial court was of the opinion that the duty of the defendant to provide a reasonably safe place for his workmen was continuous, so that in every change in the surface of this great ledge of rock, whether occasioned by blasting out a bench or shoveling off the crushed and broken stones, the master's duty of providing a reasonably safe place for his workmen at once attached. But, although the particular act of omission...