Conway v. Furst

• Decision Date: 17 June 1895
• Citation: 57 N.J.L. 645,32 A. 380
• Parties: CONWAY v. FURST.
• Court: New Jersey Supreme Court

32 A. 380

57 N.J.L. 645

CONWAY

v. FURST.

Court of Errors and Appeals of New Jersey.

June 17, 1895.

(Syllabus by the Court.)

Error to circuit court, Hudson county; before Justice Lippincott.

Action by Martin Conway against Charles S. Furst for personal injuries. Defendant had judgment, and plaintiff brings error. Affirmed.

W. B. Gilmore, for plaintiff in error.

Wallis, Edwards & Bumsted, for defendant in error.

VAN SYCKEL, J. Conway was employed as watchman in the store of defendant.

The store was opened in October, 1893, but was not then completed. The plaintiff was injured on December 3, 1892,—in the evening, after the store had been closed,—by falling down an elevator. This suit was brought by Conway against Furst, his employer, to recover damages for his injury. Conway knew that the elevator was not finished, and that mechanics were still working upon it, hastening its completion. He knew, also, that no doors had yet been put in the elevator to protect any one from stepping into the shaft and falling to the floor below. The rule is well settled that where an employment is attended with danger, of which those who enter into have notice, they cannot, if injured, recover compensation from their employer. In Harrison v. Railroad Co., 31 N. J. Law, 296, the chief justice states the rule concisely in these words: "The servant, when he undertakes to perform any particular service, assumes, as a part of his conventional obligations, the ordinary perils which, in the nature of things, are incident to such service." Kennedy v. Railway Co. (N. Y. App.) 39 N. E. 956. Is directly in point. That suit was brought by Hannah Kennedy, administratrix of Michael Kennedy, deceased. The deceased was a car cleaner in defendant's elevated railroad yards, and was killed by stepping backwards from a car at night, and falling through an opening in the structure on which the tracks were laid. It was shown that the structure was new, and not yet finished; that deceased had been there daily for three weeks, in the capacity of watchman and car cleaner, saw the carpenters at work planking the structure, and knew its condition. The court said that if the deceased knew that the yard was in an unfinished state, and that it was uncovered in places, and that it was in the course of being covered, he assumed, by continuing in the employment, the risk of falling through these uncovered places, and the defendant was not liable. This established rule of law is a bar to the...