Maltbie v. Belden

• Decision Date: 04 June 1901
• Citation: 167 N.Y. 307,60 N.E. 645
• Parties: MALTBIE v. BELDEN et al.
• Court: New York Court of Appeals Court of Appeals

167 N.Y. 307

60 N.E. 645

MALTBIE

v.BELDEN et al.

Court of Appeals of New York.

June 4, 1901.

Appeal from supreme court, appellate division, Fourth department.

Action by Olive Maltbie against Alvin J. Belden and others. From a judgment of the appellate division (60 N. Y. Supp. 824) affirming a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Reversed.

William Nottingham, for appellants.

M. E. Eriscoll, for respondent.

BARTLETT, J.

This action was brought by the plaintiff, as administratrix of the estate of her deceased husband, to recover of the defendants damages in negligently causing his death. In October, 1897, the defendants, under contract with the state, were engaged in deepening the Erie Canal in the town of Camillus, Onondaga county. The deceased was working with a gang of men employed by the defendants under the supervision of Orson Seeley as foreman. These workmen were engaged in driving spiles as part of the work they were prosecuting. The canal at this point ran east and west, and was crossed at right angles by a highway, which, about 1,000 feet south of the canal, was intersected by a state ditch, also being excavated by these contractors. The ditch ran from the highway diagonally to the canal, intersecting it some distance west of the highway bridge, thus making a triangle bounded on the north by the canal, on the east by the highway, and on the south and west by the state ditch. The land in this triangle was low, swampy, and apparently useless. The evidence shows that it was covered with grass, wood, stumps, trees, and refuse. On this land, some 40 or 50 yards south of the canal, stood a dead elm tree about 35 feet high, with some ragged stumps or ends of branches projecting from the upper part; the bark had fallen from it; it was weather beaten and decayed. A short distance west were a few other elm trees. Some little distance northwest of this dead elm, and near the canal, was a large quantity of spiles to be sued in the work of the defendants. During the morning of the day the plaintiff's intestate was killed, a fire was discovered on the southwesterly or southerly portion of this triangle, which spread rapidly, and, unless checked, it was obvious that the spiles in question would be consumed. These defendants had two other gangs of workmen engaged in excavating on the state ditch under separate foremen. They also employed a walking boss, named Hannan, who was supervising the work generally. The men in all of these gangs were called upon to fight the fire, and did so for a considerable time. Hannan assumed the control of the men, and directed their operations. Some of the men, among whom was the deceased, were engaged in carrying water in pails from the canal to the fire, and in doing so passed a short distance north of the dead elm tree. At the time of the accident this tree had been on fire for about three-quarters of an hour, and it was the subject of conversation between Hannan and a workman whether it should be cut down or allowed to burn, Hannan inclining to the latter view. The evidence does not disclose any general apprehension existing among the workmen that the burning tree was an object of special danger. The deceased, while engaged with some 25 others in carrying water from the canal to fire in the undergrowth, passed, as he had repeatedly done, about 20 feet or more to the north of the burning tree, when it suddenly fell upon him, causing his instant death. The wind at the time was blowing from the south. The defendants were not present during the fire. The jury rendered a verdict for the plaintiff, and the appellate division affirmed the judgment entered thereon with a divided court. The prevailing opinion rests upon the theory that the foremen and the walking boss, Hannan, were representing the masters in the prosecution of the regular work, and that when the property of the latter was endangered by fire it was their duty to request the assistance of the men under them to preserve it if possible; that, if the men consented to leave the regular work, and engage in protecting the property, the foremen still represented the masters in the emergency, and owed to the men the same duty as would the masters if personally present. It is conceded that the nature of the work was hazardous, and that plaintiff's intestate assumed the obvious risks, but it is argued that he had the right to expect that he would be warned of any imminent danger which was known to the masters, but of which he had no knowledge. The only alleged negligent act by which it is sought to charge the defendants is the failure of Hannan, the walking boss, to inform the men, including the deceased, who were carrying water in the vicinity of the burning tree, to keep away from it, as it was about to fall. This position assumes that Hannan represented the masters, and, furthermore, that he knew the tree was about to fall.

As to the time when the burning tree would fall, it was matter of opinion, and a subject upon which each person present could exercise his individual judgment. The fact that the tree would fall if the fire continued to consume it was as much an obvious risk of the employment as any other danger which confronted the workmen in this unusual and exciting situation. It may be said, in a general way, that it is the duty of the servant to...