Ives v. South Buffalo Ry. Co.

Citation94 N.E. 431,201 N.Y. 271
Decision Date24 March 1911
CourtNew York Court of Appeals


Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Earl Ives against the South Buffalo Railway Company. From a judgment of the Appellate Division (140 App. Div. 921,125 N. Y. Supp. 1125), affirming a final judgment for plaintiff, entered on a decision at Special Term (68 Misc. Rep. 643,124 N. Y. Supp. 920), sustaining a demurrer to defenses pleaded in the answer, defendant appeals. Reversed, and judgment directed for defendant.

This is an action brought by an employe against his employer to recover compensation under article 14a of the labor law, being chapter 674 of the Laws of 1910, entitled ‘An act to amend the labor law, in relation to workmen's compensation in certain dangerous employments.’ The complaint alleges, in substance, that on the 2d day of April, 1910, while the plaintiff was engaged in his work as a switchman on defendant's steam railroad, he was injured solely by reason of a necessary risk or danger of his employment, that at the time of the commencement of the action he had been totally incapacitated for labor for a period of three weeks, and that such incapacity would continue for four weeks longer, and demands judgment for compensation in accordance with the provisions of said act for a period of five weeks. The answer, after admitting all the allegations of the complaint, pleads as a defense the unconstitutionality of article 14a of the labor law, upon the ground that it contravenes certain provisions of the federal and state Constitutions. The plaintiff demurred to this defense on the ground that it was insufficient in law upon the face thereof. The issue of law thus presented was tried at Special Term, where the demurrer was sustained. Final judgment was entered upon this decision, and the defendant appealed to the Appellate Division, where the judgment was affirmed by a divided court.

This statute, which has been added to the labor law, is known as article 14a thereof, and consists of 12 sections, which we quote in full. The question presented upon this appeal is whether it is repugnant to any of the provisions of the federal and state Constitutions invoked by the defendant.

‘Workmen's Compensation in Certain Dangerous Employments.

§ 215. Application of Article.-This article shall apply only to workmen engaged in manual or mechanical labor in the following employments, each of which is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risks to the life and limb of workmen engaged therein are inherent, necessary or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for accidents to workmen.

‘1. The erection or demolition of any bridge or building in which there is, or in which the plans and specifications require, iron or steel frame work.

‘2. The operation of elevators, elevating machines or derricks or hoisting apparatus used within or on the outside of any bridge or building for the conveying of materials in connection with the erection or demolition of such bridge or building.

‘3. Work on scaffolds of any kind elevated twenty feet or more above the ground, water, or floor beneath in the erection, construction, painting, alteration or repair of buildings, bridges or structures.

‘4. Construction, operation, alteration or repair of wires, cables, switchboards or apparatus charged with electric currents .

‘5. All work necessitating dangerous proximity to gunpowder, blasting powder, dynamite or any other explosives, where the same are used as instrumentalities of the industry.

‘6. The operation on steam railroads of locomotives, engines, trains, motors or cars propelled by gravity or steam, electricity or other mechanical power, or the construction or repair of steam railroad tracks and road beds over which such locomotives, engines, trains, motors or cars are operated.

‘7. The construction of tunnels and subways.

‘8. All work carried on under compressed air.

§ 216. Definitions.-The words, ‘employer,’ ‘workman’ and ‘employment,’ or their plurals, used in this article, shall be construed to apply to all the employments above described.

§ 217. Basis of Liability.-If, in the course of any of the employments above described, personal injury by accident arising out of and in the course of the employment after this article takes effect is caused to any workman employed therein, in whole or in part, or the damage or injury caused thereby is in whole or part contributed to by

‘a. A necessary risk or danger of the employment or one inherent in the nature thereof; or

‘b. Failure of the employer of such workmen or any of his or its officers, agents or employees to exercise due care, or to comply with any law affecting such employment; then such employer shall, subject as hereinafter mentioned, be liable to pay compensation at the rates set out in section two hundred and nineteen-a of this title; provided that the employer shall not be liable in respect of any injury which does not disable the workman for a period of at least two weeks from earning full wages at the work at which he was employed, and provided that the employer shall not be liable in respect of any injury to the workman which is caused in whole or in part by the serious and willful misconduct of the workman.

§ 218. Rights of Action not Affected.-The right of action for damages caused by any such injury, at common law or under any statute in force on January one, nineteen hundred and ten, shall not be affected by this article, and every existing right of action for negligence or to recover damages for injuries resulting in death is continued, and nothing in this article shall be construed as limiting such right of action, but in case the injured workman, or in event of his death his executor or administrator, shall avail himself of this article, either by accepting any compensation hereunder in accordance with section two hundred and nineteen-a hereof, or by beginning proceedings therefor in any manner on account of any such injury, he shall be barred from recovery in and deemed thereby to have released every other action at common law or under any other statute on account of the same injury after this article takes effect. In case after such injury the workman, or in the event of his death his executor or administrator, shall commence any action at common law or under any statute other than this article against the employer therefor he shall be barred from all benefit of this article in regard thereto.

§ 219. Notice of Accident.-No proceedings for compensation under this article shall be maintained unless notice of the accident as hereinafter provided has been given to the employer as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and during such disability, but no want or defect or inaccuracy of a notice shall be a bar to the maintenance of proceedings unless the employer proves that he is prejudiced by such want, defect or inaccuracy. Notice of the accident shall state the name and address of the workman injured, the date and place of the accident, and in simple language the physical cause thereof, if known. The notice may be served personally or by sending it by mail in a registered letter addressed to the employer at his last known residence or place of business.

§ 219a. Scale of Compensation.-The amount of compensation shall be in case death results from injury:

‘a. If the workman leaves a widow or next of kin at the time of his death wholly dependent on his earnings, a sum equal to twelve hundred times the daily earnings of such workman at the rate at which he was being paid by such employer at the time of the injury subject as hereinafter provided, and in no event more than three thousand dollars. Any weekly payments made under this article shall be deducted in ascertaining such amount.

‘b. If such widow or next of kin at the time of his death are in part only dependent upon his earnings, such proportionate sum not exceeding that provided in subdivision a as may be determined according to the injury to such dependents.

‘c. If the leaves no dependents, the reasonable expenses of his medical attendance and burial, not exceeding one hundred dollars.

‘Whatever sum may be determined to be payable under this article in case of death of the injured workman shall be paid to his legal representative for the benefit of such dependents, or if he leaves no such dependents, for the benefit of the persons to whom the expenses of medical attendance and burial are due.

‘2. Where total or partial incapacity for work at any gainful employment results to the workman from the injury, a weekly payment commencing at the end of the second week after the injury and continuing during such incapacity, subject as herein provided, equal to fifty per centum of his average weekly earnings when at work on full time during the preceding year during which he shall have been in the employment of the same employer, or if he shall have been in the employment of the same employer for less than a year, then a weekly payment of not exceeding three times the average daily earnings on full time for such less period. In fixing the amount of the weekly payment, regard shall be had to the difference between the amount of the average earnings of the workman before the accident and the average amount he is able to earn thereafter as wages in the same employment or otherwise. In fixing the amount of the weekly payment, regard shall be had to any pavement, allowance or benefit which the workman may have received from the employer during the period of his incapacity, and in the case of partial incapacity the weekly payment shall in no case exceed the difference between...

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