Fitzwater v. Warren

• Citation: 206 N.Y. 355,99 N.E. 1042
• Parties: FITZWATER v. WARREN et al.
• Decision Date: 22 October 1912
• Court: New York Court of Appeals Court of Appeals

206 N.Y. 355

99 N.E. 1042

FITZWATER

v.WARREN et al.

Court of Appeals of New York.

Oct. 22, 1912.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Jay W. Fitzwater against Guy S. Warren and others. From a judgment of the Appellate Division (140 App. Div. 941,126 N. Y. Supp. 1129) reversing a judgment of nonsuit, and granting a new trial, defendants appeal. Affirmed.

Frederick E. Hawkes, of Waverly, for appellants.

M. A. Leary, of Penn Yan, for respondent.

CULLEN, C. J.

[1] I think the order of the Appellate Division reversing the judgment of nonsuit at Trial Term and granting a new trial should be affirmed. It is conceded that the defendants violated the statute of this state which enacts that all set screws shall be guarded, and that as a result of that violation of law the plaintiff was injured. The defendants seek to be relieved from the consequences of their wrongdoing on the claim that the plaintiff assumed the risk of their illegal act because he saw and knew of the existence of the unguarded set screw. My personal opinion on this subject is the same as that expressed by me in the former General Term of the Supreme Court (Simpson v . N. Y. Rubber Co., 80 Hun, 415, 30 N. Y. Supp. 339), that public policy precludes an employe from assuming the risk created by a violation of the statute or waiving liability of the master for injuries caused thereby. In the case of Knisley v. Pratt, 148 N. Y. 372, 42 N. E. 986,32 L. R. A. 367, this court took a different view of the law, and, if the authority of that case remained in full force, I should feel constrained to subordinate my own convictions to that decision, though I may say in passing that subsequent to the decision of the Simpson and Knisley Cases the federal Circuit Court of Appeals in an elaborate opinion by the present President of the United States held the same doctrine as that of the Simpson Case-that risks occasioned by the failure of the employer to supply statutory safeguards were not assumed by the employe, though he had knowledge of such failure. Narramore v. Cleveland, etc., Ry. Co ., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68. The decision in the Knisley Case was a reversal of the judgment of the former General Term of the Supreme Court where, in an opinion written by Judge Haight, now a judge of this court, it was said: ‘That the risks of the service which a servant assumes in entering the employment of a master are those only which occur after the due performance by the employer of those duties which the law enjoins upon him.’ 75 Hun, 327, 26 N. Y. Supp. 1013. Having sat below, he did not participate in the decision of the Knisley Case when it was before this court and Judge Vann dissented from the decision. The doctrine of the Knisley Case has, however, been largely qualified, if not virtually overruled, by the subsequent decision of this court in Johnston v. Fargo, 184 N. Y . 379, 77 N. E. 388,7 L. R. A. (N. S.) 537, 6 Ann. Cas. 1, where we held that an agreement between the employe and employer relieving the employer from liability for all personal injuries to the employe that might result from the negligence of the employer was void as against public policy. If an express agreement could not relieve the master in the case cited, it does not seem clear how by a merely implied contract he can be relieved from the results of a direct violation of the statute.

[2][3] Moreover, in this case the assumption of risk was a fair question of fast for the jury. The plaintiff knew that the set screw was unguarded, and that if his person or clothing came in contact with it he might be injured, but it does not follow that he necessarily knew of the probability of the sawdust or material in which he was standing yielding to such an extent as to bring his person or clothing into contact with the set screw. To establish the defense of assumption of risk the burden of proof rests on the defendant (Dowd v. N. Y., Ontario & W. Ry. Co., 170 N. Y. 459, 63 N. E. 541), and, though the defect be apparent, if it may require judgment not possessed by the ordinary observer or servant to realize the hazard caused thereby, the risk is not assumed (Davidson v. Cornell, 132 N. Y. 228, 30 N. E. 573;Welle v. Celluloid Co., 175 N. Y. 401, 67 N. E. 609). The plaintiff, without any previous experience in his work, was unjured within four days after his employment. The statute which the defendants violated was enacted for the express purpose of safeguarding the persons of employes. Where an employer deliberately fails to comply with the statute, the courts should be loath, except in a very clear case, to hold that the employe assumes the risk of his master's violation of the law. Otherwise the beneficent results sought to be attained by the statute will fail to be realized. There seems at the present day an effort by constitutional amendment to render a master liable to his employe for injury received in his employment, though the master has been guilty of no fault whatever, and I feel that such effort is in no small measure due to the tendency evinced at times by the courts to relieve the master, though concededly at fault, from liability to his employe on the theory that the latter assumed the risk of the master's fault.

The order of the Appellate Division should be affirmed and judgment absolute rendered for the plaintiff on the stipulation, with costs in all courts.

COLLIN, J. (dissenting).

The action is by an employe against employers to recover, under the principles of the common law, damages for personal injuries. The trial court dismissed the complaint. We are to determine whether or not the evidence presented an issue of fact . In reviewing it, we must give the plaintiff the advantage of all the facts properly presented and of every favorable inference that can reasonably be drawn. Kraus v. Birnbaum, 200 N. Y. 130, 93 N. E. 474;Pinder v. Brooklyn Heights R. R. Co., 173 N. Y. 519, 66 N. E. 405. The defendants operated a sawmill. The work of the plaintiff was to saw the slabs into pieces of different lengths by placing them against a circular saw which received its power by means of a belt running from a pulley on the main power shaft located near the floor of the basement underneath. It was a part of his duty to replace the belt upon the pulley of the main shaft whenever it ran off; and in doing that his foot was mangled by an unguarded set screw in and prejecting 1 1/2 inches from the main shaft. The injuries so received are the basis of this action. The main shaft revolved in the top of a bed of sawdust, formed by the sawdust which had sifted through the floor above where the saws were. The set screw was 12 or 14 inches from the pulley. When the plaintiff replaced the belt, he stood astride the revolving shaft at the point where the set screw was, and with a stick which he held crowded the belt upon the pulley. In pursuing this manner, he followed the instructions given him by a representative of the defendants at the time he was employed four days before that of the accident. Concerning the exact cause of his injuries, he testified: ‘In the meantime (while he was pressing the belt on the pulley),...