Andrecsik v. New Jersey Tube Co.

• Decision Date: 18 June 1906
• Parties: ANDRECSIK v. NEW JERSEY TUBE CO.
• Court: New Jersey Supreme Court

63 A. 719

73 N.J.L. 664

ANDRECSIK

v. NEW JERSEY TUBE CO.

Court of Errors and Appeals of New Jersey.

June 18, 1906.

(Syllabus by the Court.)

Error to Supreme Court.

Rule by Kazmir Andrecsik against the New Jersey Tube Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Samuel Kalisch, Jr., and Samuel Kalisch, for plaintiff in error. Lindabury, Depue & Faults, for defendant in error.

DILL, J. This action is brought to recover damages for personal injuries sustained by the plaintiff, while in the defendant's employ, through the defendant's alleged negligence. The plaintiff, a man 28 years of age, had been employed in the defendant's mill for about two years prior to the accident—eighteen months as helper, about two months as an assistant upon the machine, and about three months prior to the injury in charge of the machine at which he was injured. When placed in charge of the machine he was instructed as to its workings. Prior to 10 o'clock in the morning of November 11, 1903, the day upon which he was injured, the plaintiff discovered that the machine upon which he was working was out of order. He testified that this was very easy to see. About 10 o'clock he complained of this to the superintendent, who replied: "You go right ahead with the work. We are overloaded with work, and noon hour I will fix this for you." What a third party understood the superintendent to say is not material to this decision. The foregoing is what the plaintiff asserts the superintendent promised him and was the agreement to repair upon which the plaintiff relied in resuming work. The plaintiff continued to work on the machine until the noon hour, quitting at 12 o'clock without injury. He ate his lunch near the machine, in sight of it, and was in and about the place during the noon hour. During the noon hour, from 12 o'clock to 1 o'clock, the machine was not repaired, and this was apparent to plaintiff. The defective condition of the machine when the plaintiff resumed work was obvious. At 1 o'clock the plaintiff resumed work and continued until 3 o'clock, when he was injured by this defective machine. No evidence was offered in behalf of the defense. The Chief Justice, who tried the case below, nonsuited the plaintiff, and, holding the promise to be definite as to the time of performance, laid down this rule: "Where the master says that he will repair the machine, or have it repaired at a specific time, the employe is entitled to continue to operate the defective machine at the master's risk until that time has elapsed; but if, after that time, the master has not made good his word, and made the repairs, and the employe still continues to operate the machine, the risk shifts, and the employe assumes it, relieving the master." The defendant in error seeks to review this ruling, and for that purpose this writ of error is prosecuted.

We are of the opinion that the rule laid down by the Chief Justice was correct, and that the nonsuit was proper. The questions of law decisive of the case at bar have not been heretofore passed upon by this court. The plaintiff was engaged in operating a machine which was obviously defective. He was aware of the danger incident to such defective condition. The servant, by accepting employment, or voluntarily continuing therein, with the knowledge or means of knowing the dangers involved, is deemed to have assumed the risk. This rule the plaintiff seeks to avoid by proof that he notified the master of the defect, and that the master, for the purpose of inducing the plaintiff to continue in his employment, promised to remedy it. The question presented is whether the servant was chargeable, in spite of the promise, with the assumption of the risk in question and as a conclusion of law. The decision must, in the first place, depend upon the character of the promise to repair. Was it express or inferential as to time of fulfillment? If inferential, there may have been a question for the jury. If express, there was no question for the jury on that point The words "noon hour" are definite terms: "Noon—Midday; and in exact use twelve o'clock." Century Dictionary. "Hour—a particular time; a fixed or appointed time." Century Dictionary. "Noon" designated the beginning of the period, i. e., 12 o'clock; "hour," the duration of the period. It is clearly shown by the evidence that the term "noon hour" was in common use, and was well understood by both parties to mean from 12 o'clock noon to 1 o'clock p. m. The plaintiff says he quit work at 12 o'clock and went to work at 1 o'clock. Again, he was asked if he worked "before the noon hour" on the day on which he was injured. "Yes, sir," he answered, "I started at 7 and worked until 12." The words "noon hour" are used by the plaintiff and his witnesses, and always, as meaning from 12 o'clock noon to 1 o'clock p. m. In King-Ryder Lumber Co. v. Cochran, 71 Ark. 55, 70 S. W. COG, the plaintiff, who was running an edging machine in a lumber mill, discovered a defect in the machine in the morning and informed the foreman, who told him "to go on and run it until noon, when he would have it repaired." The court treated this as a promise to repair at a definite time, and it is cited by subsequent authorities as a definite promise. Otherwise the case is not in point. In the case before us, we are of the opinion that the promise to repair was not general, but specific, as to time of performance. The time when the promise to repair should have been fulfilled is too clear for reasonable controversy. There was no need of submitting that question to the jury, or any other question bearing upon the subject.

In discussing the further questions involved it should be noted that in this case: (1) The promise to repair, made after the work was begun, was definite as to the time of performance; (2) the accident did not occur between the time of the making of the promise and before the end of the period fixed for its fulfillment; (3) The injury was subsequent to (a) the complaint, (b) the promise, (c) the agreed time of performance, and (d) the master's default in resuming work under these circumstances, was the risk the servant's or the master's?

The two recent cases in the Supreme Court (Dowd v. Erie R. R. Co., 70 N. J. Law, 451, 57 Atl. 248, and Dunkerley v. Webendorfer Machine Co., 71 N. J. Law, 60, 58 Atl. 94) have not heretofore been before this court. In both the master's agreement was indefinite as to the time when the repair was to be made. In the Dowd Case, the promise was to have it attended to "as soon as he could." In the Dunkerley Case, the agreement was to remedy the fault "at the first opportunity." In the Dowd Case, Mr. Justice Swayze states the law to be as follows: "The rule that the servant assumes not only the ordinary risks incident to the employment, but also such special features of danger as are plain and obvious, and also such as he would discover by the exercise of ordinary care for his personal safety, is well established in this state. [Citing cases.] The servant assumes, as well, those risks which arise or become known to him during the service as those in contemplation at the original hiring. Dillenberger v. Weingartner (Err. & App. 1899) 64 N. J. Law, 292, 45 Atl. 638. To the rule that the servant assumes the obvious risks of the employment, an exception is made where the master has promised to amend the defect or to make the place safe, and the servant continues the work in reliance upon the promise. * * * The master is exempted from liability in the case of obvious risks for the reason that the servant, by continuing in the employment with knowledge of the danger, evinces a willingness to incur the risk, and upon the principle volenti non fit injuria. But when the servant shows that he relied upon a promise made to him to remedy the defect, he negatives the inference of willingness to incur the risk. In such a case this inference can only be drawn when the servant continues the work, although the promise is not performed within a reasonable time." 70 N. J. Law, 451, at page 455, 57 Atl. 248, at page 250. We are referred to the decision of the Supreme Court of the state of New York in Rice v. Eureka Taper Co., 70 App. Div. 336, 75 N. Y. Supp. 49, as the leading authority for the insistment that the Dowd Case should not be approved by this court. The answer to this argument and the citation in its support is twofold. In the first place, the decision of the New York Supreme Court in the Rice Case is not in conflict with the Dowd Case. In the Dowd Case, the promise to repair was indefinite as to time of performance by the master. The court construed it to be a general promise. In the Rice Case, the New York Supreme Court construed the promise to repair as specific and based its conclusion upon that construction of the promise. 70 App. Div., at page 342 et seq., 75 N. Y. Supp., at page 53. It held that, in a case where the promise was to repair at a definite time, the risk in the Interim, between the time of the making of the promise and the time set for its performance, was that of the servant, and not of the master. 70 App. Div. 354, 75 N. Y. Supp. 62. In the second place, the Court of Appeals of New York reversed the Supreme Court. Rice v. Eureka Paper Co., 174 N. Y. 385, CO N. E. 979, 62 L. R. A. 611, 95 Am. St. Rep. 585, reversing 70 App. Div. 336, 75 N. Y. Supp. 49. The Court of Appeals overruled the holding below as to the character of the promise to repair, declared that it was not specific as to time of performance (174 N. Y., at page 397, 66 N. E., at page 983 [62 L. R. A. 611, 95 Am. St. Rep. 585]), construed it as a promise to repair generally, indefinite as to the time of its performance (page 398 of 174 N. Y., page 983 of 66 N. E. [62 L. R. A. 611, 95 Am. St. Rep. 585]), and, proceeding upon that construction, established the law of that state in harmony with the doctrine of the Dowd Case. The doctrine of the Dowd Case is...