157 N.Y. 251, Perry v. Rogers

Citation:157 N.Y. 251
Party Name:JOHN PERRY, Respondent, v. JOHN C. ROGERS, Appellant.
Case Date:November 22, 1898
Court:New York Court of Appeals

Page 251

157 N.Y. 251

JOHN PERRY, Respondent,


JOHN C. ROGERS, Appellant.

New York Court of Appeal

November 22, 1898

Argued October 24, 1898.

Page 252


Thomas S. Moore for appellant. The complaint should have been dismissed at the close of plaintiff's case. (McDugan v. N.Y. C. & H. R. R. R. Co., 10 Misc. 337; Williams v. D., L. & W. R. R. Co., 116 N.Y. 628; Wright v. N.Y. C. R. R. Co.. 25 N.Y. 562; Gibson v. E. Ry. Co., 63 N.Y. 449; Deforest v. Jewett, 88 N.Y. 264; Sweeney v. B. & J. E. Co., 101 N.Y. 520; Hickey v. Taaffe, 105 N.Y. 26; Buckley v. G. P. & R. M. Co., 113 N.Y. 540; Crown v. Orr, 140 N.Y. 450, 456; Cullen v. Norton, 126 N.Y. 1; Mancuso v. C. C. Co., 87 Hun, 519; Loughlin v. State, 105 N.Y. 163; Keenan v. N.Y. L. E. & W. R. R. Co., 145 N.Y. 196; Sherman v. R. & S. R. R. Co., 17 N.Y. 153.) The court erred in charging the jury that 'the duty of the master is to provide a safe place in which to perform the work of the employment.' (Harley v. B. C. M. Co., 142 N.Y. 34; Mickee v. Wood M. M. Co., 77 Hun, 562; Butler v. Townsend, 126 N.Y. 105.)

F. W. Catlin for respondent. There was sufficient evidence of defendant's negligence to sustain the verdict. (Szuchy v. H. C. & I. Co., 150 N.Y. 219; Hazman v. H. L. & I. Co., 50 N.Y. 53; Painton v. N. C. R. Co., 83 N.Y. 7; Com. Bank of K. v. Pfeiffer, 108 N.Y. 242; Union P. R. R. Co. v. Jarvis, 10 U.S. App. 439; Byrne v. B. C. R. R. Co., 58 N.Y. S. R. 577; 27 N.Y.S. 126; Bailey v. R., W. & O. R. R. Co., 139 N.Y. 302; Buckley v. P. H. I. O. Co., 17 N.Y. S. R. 436; 117 N.Y. 645; McCall v. Witherbee, 21 Wkly. Dig. 530; 103 N.Y. 654; Vanesse v. Catsburg, etc., 159 Penn. St. 403; McGovern v. C. V. R. R. Co., 123 N.Y. 280; Kranz v. L. I. R. Co., 123 N.Y. 1; Stuber v. McEntee, 142 N.Y. 204; Mickee v. Wood M. M. Co., 70 Hun, 456; Holden v. F. R. R. Co., 129 Mass. 268; Mulcairns v. City, 67 Wis. 24, 35, 36; 5 S. & R. on Neg. § 203; Burns v.

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Matthews, 146 N.Y. 386.)Plaintiff was not guilty of contributory negligence as matter of law, nor did he assume the risks. (Doyl v. Baird, 6 N.Y. Supp. 517.) The charge of the trial judge was correct. (Sciolina v. E. P. Co., 7 A.D. 417; Adams v. I. Nat. Bank, 116 N.Y. 606; Wells v. Higgins, 132 N.Y. 459, 464; Wyman v. Hart, 12 How. Pr. 122.)


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 one hundred 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 was drilling and blasting. The work was commenced by drilling with steam drills a large number of holes twenty feet deep on the top of the bank, and about eight or ten 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 thirty feet in length, twenty feet in depth, and from eight to ten 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

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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 forty 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...

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