Garthe v. Ruppert

• Decision Date: 22 May 1934
• Citation: 190 N.E. 643,264 N.Y. 290
• Parties: GARTHE v. RUPPERT.
• Court: New York Court of Appeals Court of Appeals

264 N.Y. 290

190 N.E. 643

GARTHE

v.RUPPERT.

Court of Appeals of New York.

May 22, 1934.

Action by Alfred Garthe against Jacob Ruppert. From a judgment of the Appellate Division (240 App. Div. 968, 268 N. Y. S. 908), modifying a judgment of the Trial Term by reducing the amount of the verdict in favor of the plaintiff, the defendant appeals.

Judgments reversed, and the complaint dismissed.Appeal from Supreme Court, Appellate Division, First department.

Grant C. Fox, of New York City, for appellant.

Arthur L. Gould, Milton Speiser, and Joseph Speiser, all of New York City, for respondent.

CRANE, Judge.

The defendant, Jacob Ruppert, maintains a brewery at the southeast corner of Third avenue and Ninety-second street, New York City, photographs of which form part of the record. It was erected about 1918, and to all appearances is a smart, up-to-date factory for making beer. The entrance to the offices is on Third avenue. An elevator takes one to the sixth floor where the offices are situated.

The brew yard is on the ground floor and is entered from Ninety-second street. It is about a hundred feet by a hundred feet, into which the trucks drive. The floor of the yard is of cobblestones. It is the receiving department, to which is brought malt, hops, rice, grain, grits, sugar, syrup, cellulose, boxes, sawdust, and other articles. The things which are taken out of this yard are the waste or spent grains sold to and removed by the Farmers' Feed Company, also malt syrup in cans, barrels, empty boxes, and cartons. By processes described in the evidence, the malt is dumped into chutes on the ground floor, and taken by the conveyer to bins and gives off the dust which spreads over the floor. On the other side of the yard are hoppers with spouts, through which the spent or waste grains-mash-are discharged into carts. This waste is wet as it comes through the hopper and spouts.

That the process of making beer is more or less a wet and sloppy business is indicated by the fact that most of the men who work inside the brew house wear rubber boots. When malt and grain are dumped into the chutes and conveyers in the brew yards, dust naturally arises and settles on the floor.

It is evident beyond the point of contradiction that the brewery business carried on by the defendant made the floor of the yard and other places where the men worked necessarily wet, mushy, slippery, and sloppy. Mr. Ruppert was not unmindful of this, for he had provided, off from the ground floor, an up-to-date locker room such as we find in some of the golf clubs and gymnasiums where the men could keep and change their clothes. Off from this locker room was a toilet with modern equipment and places for the men to wash up. As the men, dirty from their work, came into this place to clean up, they brought some of the dirt with them. The locker, toilet, and the wash room were places made and maintained for the workmen where they came to change their clothes, wash, and clean up. We must view conditions with an eye to the purpose of the place and the nature of the employment. This place was maintained for work and for workmen in a wet and mushy employment. No one would expect such a place to be kept as neat and as tidy as a wash room and toilet in a club, hotel, or for the use of patrons and customers in stores.

What has just been said was well known to Mr. Alfred Garthe, the plaintiff, who for many years was in the defendant's employ. Lately he had been living in Jersey carrying on an independent business of selling and distributing drinks, part of the defendant's product. He did business with the defendant as a customer, and on June 25, 1929, went to the defendant's office on the sixth floor to see about his financial account. When he got through, he went into the yard to see one of the foremen on a personal matter. He asked permission to use the wash room and toilet, and while in there slipped on the floor and hurt his head. He says the floor was not clean; that it was slippery from brewery material which had been dragged in apparently on the boots of the employees. He says that Ruppert was negligent in not keeping this place clean for his use. The answer to his claim is this: Ruppert was running a brewery, a place of manufacture, and maintained this locker room for the purpose above indicated. It was a place where men were expected to bring in their dirty boots and clothes and clean themselves, and the plaintiff knew from past experience, as well as everybody else connected with the business, that this wash room would not be at all times clean and dry. The place took on the condition which necessarily arose out of the performance of the work. Its slippery, sloppy condition was caused by the men; they had to clean up somewhere.

The defendant maintained this place for his workmen. It apparently was safe enough for them; for it had been in use for some time. He was not maintaining it for the benefit of customers. Their place of like nature was on the sixth floor, where ample accommodation was furnished for the needs of patrons. This place down in the workshop off from the malt receiving room and yard, where moisture and mussy, damp mash were scattered about, was for the use of workmen and employees. The defendant owed this plaintiff no duty to clean it and make it dry for his special use. Work was going on, surrounded by all those necessary little dangers which accompany activities in factories and breweries. The duty of the defendant was none other than to keep the place reasonably safe for the purpose for which it was maintained-the use of the workmen whose boots must necessarily be dirty and wet as they came into the locker room and the toilet.

Where a person goes upon the premises of another without invitation, but simply as a bare licensee, and the owner of the property passively acquiesces in his coming, if an...