Yaconi v. Brady & Gioe, Inc.

• Citation: 158 N.E. 876,246 N.Y. 300
• Parties: YACONI v. BRADY & GIOE, Inc., et al.
• Decision Date: 22 November 1927
• Court: New York Court of Appeals Court of Appeals

246 N.Y. 300

158 N.E. 876

YACONI

v.BRADY & GIOE, Inc., et al.

Court of Appeals of New York.

Nov. 22, 1927.

Action by Guiseppe Yaconi against Brady & Gioe, Inc., impleaded with another. Judgment of Trial Term, entered on a verdict for plaintiff was affirmed by the Appellate Division (220 App. Div. 705, 221 N. Y. S. 926), and defendant named appeals.

Reversed, and complaint dismissed.

See, also, 220 App. Div. 718, 221 N. Y. S. 927.Appeal from Supreme Court, Appellate Division, First Department.

H. H. Brown and E. C. Sherwood, both of New York City, for appellant.

Thomas A. McDonald and William F. Purdy, both of New York City, for respondent.

CARDOZO, C. J.

Plaintiff, a longshoreman, was employed by Brady & Gioe, Inc., a corporation engaged in the business of master stevedores, to do work in the loading of the Kingsholm, a vessel owned and operated by the Swedish-American Line, a Swedish corporation. While carrying a heavy bar of copper, he slipped upon some grease and fell, suffering injuries for which he sued. The trial judge dismissed the complaint against the owner of the vessel. He left to the jury the question whether there had been a breach of duty by the employer. A judgment entered on a verdict for $2,010.17 has been unanimously affirmed.

Plaintiff with other men was sent down into the hold about 1 o'clock in the afternoon. He found some spots of grease or oil scattered over the floor for the space about a yard square. He called to the gangwayman to notify the ‘boss' who was at the dock, and have some sawdust or a piece of wood supplied to cover the slippery parts. He had been told to send word in this way whenever he had need of anything in the doing of his work. The gangwayman thus notified, shouted:

‘Go on working; I will notify the boss and the sawdust will come after.'

An hour passed, but the sawdust did not come. The plaintiff fell and broke his leg.

The case went to the jury to say whether there had been a negligent failure by the master to make the place of work safe. So large a spot of oil might fairly be found to be a danger which should have been corrected with promptness by a diligent employer. Steiner v. Steamer Spokane (C. C. A.) 294 F. 242. Indeed, the danger is not disputed. The defendant says, however, that means to correct it were at hand, and that the use of these means was a mere detail of the work. The evidence is that there was a shanty on the pier where sawdust was kept. It was distant about 5 minutes' walk from the place where plaintiff was at work. From this the argument is made that the failure to get the sawdust was the result of the negligence of fellow servants for which the defendant is not liable in the absence of a statute.

[1][2][3] We find no basis for a finding that the correction of this danger was merely a detail of the work. Cf. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 S. Ct. 733, 58 L. Ed. 1208,51 L. R. A. (N. S.) 1157. The duty to use reasonable care in supplying a servant with a safe place in which to work is one resting on the master, and may not be shaken off by delegation to another. Occasions arise, however, when the progress of the work itself develops incidental dangers though the place is safe at the beginning. In such a situation the master may fulfill his duty if he furnishes his men with proper means or facilities to obviate these dangers as they emerge from time to time. Madigan v. Oceanic Steam Nav. Co., 178 N. Y. 242, 70 N. E. 785,102 Am. St. Rep. 495;Vogel v. American Bridge Co., 180 N. Y. 373, 73 N. E. 1,70 L. R. A. 725;Dailey v. Stoll, 211 N. Y. 74, 105 N. E. 87. There is nothing in the evidence to bring this case within the orbit of that principle. We have no reason to believe that the danger was one incidental to the progress of the work itself. On the contrary, one finds it difficult to see how oil could have come into the hold as the result of anything incidental to the loading of copper bars. Not only that, but we have no reason to believe that the hold had been made safe at the beginning of the job, and had become unsafe thereafter. On the contrary, the oil was visible to the plaintiff and those with him when first they went below. Even if we should assume that the defendant was not remiss in failing to observe it sooner, there was at least a duty to use reasonable diligence in removing the danger after notice of its presence. The jury might find upon the evidence that this duty was ignored.

[4] The question remains whether there was an assumption of the risk. The danger was obvious. Not only was it obvious, but the plaintiff marked and understood it. He called out to the man at the gangway that the grease must be covered or the men would slip on it. He knew that there was no pathwayto his work except across the spot of danger. The situation was much the same as in Jacobs v. Southern Ry. Co., 241 U. S. 229, 36 S. Ct. 588, 60 L. Ed. 970. In going on with the work, he made the risk his own. Crown v. Orr, 140 N. Y. 450, 35 N. E. 648;Collelli v. Turner, 215 N. Y. 675, 109 N. E. 83;Larson v. Nassau Electric R. R. Co., 223 N. Y. 14, 20,119 N. E. 92;Butler v. Frazee, 211 U. S. 459, 29 S. Ct. 136, 53 L. Ed. 281.

[5] A different question would be here if the employer or an authorized representative had promised to remove the danger, and had asked the servant in the interval to continueat the job. Rice v. Eureka Paper Co., 174 N. Y. 385, 66 N. E. 979,62 L. R. A. 611, 95 Am. St. Rep. 585;Seaboard Air Line v. Horton, 239 U. S. 595, 600, 36 S. Ct. 180, 60 L. Ed. 458;Pellegrino v. Smith Co., 226 N. Y. 165, 123 N. E. 153. In such a case the master and ‘not the servant, assumes the risk between the time of the promise and the time for its fulfillment.’ Rice v. Eureka Paper Co., supra, at page 392 (66 N. E. 981). A promise is ineffective to lay that burden on the master unless made by some one with authority. 4 Labatt, Master and Sevant, 1342, 1344, and cases there cited. The gangwayman, so called, was not such a person. He did no more than guide the draft and signal the winchman when to lower and hoist the load. His promise had no greater significance than that of any other fellow servant. United Zinc Co. v. Wright (C. C. A.) 156 F. 571. If some one in authority had been present with opportunity to mark the risk, he might have told the men to stop till they were able to go on in safety. The plaintiff did not stop, but, knowing all the chances, was willing to go on in danger. The delay of a few minutes would have been enough, for if another did not bring the sawdust, he could have gone for it himself. The alternative was his, either to stop for this brief time, or to go on at his own risk. To his undoing he chose the risk.

[6] The case was tried upon the theory that the defendant's liability, if any, was govered by the general maritime law unaffected by a statute. Robins Drydock Co. v. Dahl, 266 U. S. 449, 45 S. Ct. 157, 69 L. Ed. 372. The question has been argued whether it might properly have been tried under the act of Congress of June 15, 1920, known as the Jones Act (41 Stat. c. 250, p. 988 [46 USCA § 861 et seq.; U. S. Comp. St. §§ 8146 1/4-8146 1/4 t]). The Supreme Court has held that the act puts a stevedore within the zone of its protection. ‘It is true that for most purposes, as the word is commonly used, stevedores are not ‘seamen.’ But words are flexible.' International Stevedoring Co. v. Haverty, 272 U. S. 50, 52, 47 S. Ct. 19, 71 L. Ed. 157. The point is made, however, that the act is not to be extended to seamen upon foreign vessels. There are decisions in the Appellate Divisions refusing that extension. Clark v. Montezuma Transp. Co., 217 App. Div. 172, 216 N. Y. S. 295;Resigno v. Jarka Co., Inc., 221 App. Div. 214, 223 N. Y. S. 5. The question is an important one, but not for this appeal. Upon the facts before us, the plaintiff would gain nothing if the statute should be held to cover him. All that the Jones Act does is to give the benefit of the Employers' Liability Act of Congress (35 Stat. 65 [45 USCA §§ 51-59; U. S. Comp. St. §§ 8657-8665]) to those within its purview. The...