Bohn v. Havemeyer

• Decision Date: 03 May 1889
• Citation: 114 N.Y. 296,21 N.E. 402
• Parties: BOHN v. HAVEMEYER et al.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 296

21 N.E. 402

BOHN

v.HAVEMEYER et al.¹

Court of Appeals of New York,

Second Division.

May 3, 1889.

Appeal from supreme court, general term, Second department.

Action by Florian J. Bohn by Herman Von Bielafield, his guardian, against Frederick C. Havemeyer and others, to recover for damages sustained, as alleged, by defendants' negligence. Verdict for defendants, and judgment accordingly, which was affirmed on appeal by the general term, and plaintiff again appeals.

Julius Klamke, for appellant.

Joseph A. Burr, for respondents.

FOLLETT, C. J.

For several years before the accident which is the subject of this action the defendants had owned and operated the plaintiff was employed as a shoveler. the plaintiff was employed as a shoveler, Upon the second floor of the refinery are bins about 10 feet long, 5 feet wide, and 13 feet deep, into which refined sugar is discharged from the mill on the third floor. A hole about 2 feet square is cut in the bottom of each bin, through which sugar falls into a packer, which presses it into barrels. The action of the packer is automatic. When a barrel is filled, a valve closes in the packer, and stops the flow of sugar from the bin; and when the filled barrel is replaced by an empty one the valve opens, and permits sufficient sugar to flow from the bin into the packer to fill the barrel. This operation is repeated until all of the sugar in the bin is barreled. It is the duty of the shovelers, when the sugar is low in the bin, to shovel it towards and into the discharging orifice; and, when the bin is so full that shoveling is unnecessary, it is their duty to keep the discharging orifice open. The plaintiff had been engaged in this work previous to the day of his injury, and was acquainted with the construction of the bins, and the method of discharging sugar from them. Occasionally the discharging orifice in the bottom of the bin becomes clogged, and then it is the duty of the shovelers to open it by running a pole down through and loosening the sugar about the orifice. On the occasion of the accident in question the discharging orifice became clogged, and the plaintiff entered the bin with a co-employé to open it, but the depth of the sugar was so great that the pole used was not long enough to effect the purpose. A shovel was procured, and they dug down into the sugar far enough to enable them to reach the orifice with the pole. After some difficulty they accomplished their purpose, and thereupon a sudden and unusual subsidence of sugar occurred, drawing the plaintiff and his co-employé down wards. The plaintiff's companion sank into the sugar, and that which was above him came down upon and suffocated him. The plaintiff, who evidently was not standing in the lowest part of the pit, was not covered like his companion, but was surrounded by sugar to a point somewhat above his waist. When in this situation his co-employés threw a rope around his...