Morgan v. Hudson River Ore & Iron Co.

• Decision Date: 24 May 1892
• Citation: 31 N.E. 234,133 N.Y. 666
• Parties: MORGAN v. HUDSON RIVER ORE & IRON CO.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 666

31 N.E. 234

MORGAN

v.HUDSON RIVER ORE & IRON CO.

Court of Appeals of New York.

May 24, 1892.

Appeal from supreme court, general term, third department.

Action by Thomas F. Morgan against the Hudson River Ore & Iron Company for personal injuries. From a judgment of the general term affirming a judgment entered on a verdict for plaintiff, defendant appeals. Reversed.

Matthews & Smith, (Frank E. Smith, of counsel,) for appellant.

Levi F. Longley, (R. E. Andrews, of counsel,) for respondent.

O'BRIEN, J.

The plaintiff, a servant in the defendant's employment, was injured while in the performance of his ordinary duties. On the trial the defendant's counsel requested the court to charge the jury as follows: ‘(1) That the defendant was not guilty of any negligence in not providing a safe and suitable place for the plaintiff to work; (2) that the defendant was not guilty of any negligence in providing the plaintiff with suitable, safe, and proper tools for performing his work; (3) that the defendant was not negligent in the employment of incompetent coservants, whose acts and omissions caused or contributed to plaintiff's injury; (4) that the defendant was not negligent in failing to station a suitable person at and along the track where plaintiff was at work, charged with the duty of looking out for his safety.’ The court was about to refuse some or all of these requests, when the plaintiff's counsel assented to the correctness of the propositions, and joined with the counsel for the defendant in the requests, which were then given to the jury. This left but one ground upon which liability on the part of the defendant could be predicated, and that was its alleged omission to ‘provide and promulgate rules and regulations for the guidance and government of the men engaged in and about the dangerous work aforesaid.’ The court was requested, in behalf of the defendant, to rule and instruct the jury that there was no proof of negligence in this respect on the part of the defendant, which request was refused, and defendant excepted. The court, under the objection and exception of the defendant's counsel, submitted the question to the jury, and there was a verdict for the plaintiff, which the general term affirmed.

As the only question to be considered is whether there was any evidence of negligence in omitting to promulgate rules to submit to the jury, it is necessary to recall the facts as they were proven at the trial. The defendant had 10 kilns for roasting ore, each about 25 feet in diameter, standing in a row about 10 feet apart, and numbered from 1 to 10. They stand on a slight decline, No. 1 being the highest. A narrow gauge railroad track runs along by the side of the kilns, and within a few inches of them, upon which cars loaded with the ore are moved by horse power, and in that way taken to the point of shipment, some 500 feet distant. At that part of the track by the kilns the cars usually run down by their own weight, though sometimes drawn by a horse. Beyond kiln No. 10 they are drawn by an engine. In loading the cars from the kilns the ore sometimes falls on the tracks, and obstructs the movement of the wheels, and must be removed. There are shovels, rakes, and pickaxes there, with which the workmen remove the ore that has thus fallen on the track. On the day of the accident plaintiff was at work loading a car from kiln No. 3. The ore ran over the car on the side next the kiln, so that it blocked the wheels about a foot and a half from the track. It fell in front of the wheels on each side of the car, and it had to be removed before the car could be started. The car was also blocked by a piece of wood, to keep it from moving down the decline. The plaintiff, after filling the car, commenced to remove the ore under and in front of the wheels with a rake. Then he crawled under the car and lay down, and was engaged in cleaning out the ore not removed by the rake with his hands, when the accident happened. There was another loaded car just behind the plaintiff, in front of kiln No. 2, and two other workmen were there at work. The plaintiff spoke to them, and told them to look out for his safety; when he was clearing out the car, not to move the car, or let it run down on him until he got through. They said they would, but while the plaintiff was at work under his car the car above was in some way started, and pushed the car under which the plaintiff was at work, and his fingers were caught under the wheel and crushed. It seems that the wooden blocks under...