Zurich Gen. Accident & Liab. Ins. Co. v. Childs Co.

• Decision Date: 06 May 1930
• Parties: ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited, v. CHILDS CO.
• Court: New York Court of Appeals Court of Appeals

253 N.Y. 324

171 N.E. 391

ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited,

v.CHILDS CO.

Court of Appeals of New York.

May 6, 1930.

Action by the Zurich General Accident & Liability Insurance Company, Limited, against the Childs Company. From a judgment of the Appellate Division (227 App. Div. 47, 237 N. Y. S. 42), reversing a judgment of the Trial Term in favor of plaintiff and dismissing the complaint, plaintiff appeals.

Judgment of the Appellate Division reversed, and judgment of the Trial Term modified, and, as modified, affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Herbert B. Lee and Harold S. Lyon, both of New York City, for appellant.

Walter L. Glenney and Chester H. Lane, both of New York City, for respondent.

CARDOZO, C. J.

Bellville, an employee of a fish dealer, was injured while delivering fish at a restaurant in Albany. A claim against the employer and the insurance carrier under the Workmen's Compensation Law (Consol. Laws, c. 67) resultedin an award, which was paid. The effect of the award was to subrogate the carrier to the cause of action, if any, in favor of the employee against the owner of the restaurant (Workmen's Compensation Law, § 29). The carrier, the Zurich Accident and Liability Insurance Company, brings this action against the owner in the right of the injured workman, as assignee under the statute.

The facts, as a jury could have found them, are these: Deliveries of fish and other merchandise were made at the restaurant by means of a sidewalk elevator, which was sent up from the cellar when summoned by a bell. At times, however, as a consequence of a defect in the mechanism, the elevator would stop at a point about three feet below the level of the walk and stand fast until released. Bellville had instructions from the man in charge in the cellar as to what he was to do at such times. He was to jump upon the platform, pull a chain attached to the operating cables, and shake the elevator from side to side in order to set it free. This he did several times, and brought his provisions down in safety. On the day of the accident, he rang for the elevator, which stuck at the accustomed place. Obedient to instructions he jumped upon the platform, wet from a light rain, and as he landed there, he slipped and fell. The force of the impact caused the elevator to start upward with a bound. In moving, it severed one of his feet protruding into the cellar. Upon proof of these facts, there was a verdict for the plaintiff. The Appellate Division, reversing, dismissed the complaint on the ground that as a matter of law there had been an assumption of the risk.

Bellville was not an employee of the defendant, the owner of the restaurant. There was therefore no ‘assumption of the risk’ on his part as an incident to a contractual relation, such as that of master and servant, in which event the assumption may have the force of an implied term of the employment. Maloney v. Cunard S. S. Co., 217 N. Y. 278, 282, 283,111 N. E. 835; cf. Bohlen, Studies in the Law of Torts, pp. 444, 445, 459, 463. Whether the phrase can be applied with technical precision, in view of the associations it has gathered, to ralations not contractual, there is no occasion to determine. If it be so extended for convenience, it stands for nothing more in its application thus enlarged than is expressed in the maxim, volenti non fit injuria. McFarlane v. City of Niagara Falls, 247 N. Y. 340, 349, 160 N. E. 391, 57 A. L. R. 1. The principle compact within the maxim ‘does not result from an implied term in a contract creating the relation; it applies equally to any relation voluntarily assumed-contractual or not.’ Bohlen, Studies in the Law of Torts, p. 441. One will not be heard to complain of results one has invited. Smith v. Charles Baker & Sons, L. R. 1891 A. C. 325, 360. The question, therefore, is whether Bellville, leaping on the elevator, was so informed of the dangers inhering in the leap as to be placed in the position of one willing to encounter them.

We think the maxim does not condemn him to bear his loss without requital. The dangerous quality of the act is visible enough now when we view it after the event. It was not so obvious in the doing as to betoken, at least as matter of law, a foresight of the consequences and a readiness to accept them. Smith v. Charles Baker & Sons. L. R. 1891, A. C. supra, pages 337, 355; Larson v. Nassau Electric R. R. Co., 223 N. Y. 14, 21,119 N. E. 92;Fitzgerald v. Connecticut River Paper Co., 155 Mass, 155, 29 N. E. 464,31 Am. St. Rep. 537; Warren, Volenti non fit injuria, 8 Harv. L. Rev. 457, 462, 464; Bohlen, Studies in the Law of Torts, supra. Bellville had been assured, and assured by the defendant's represenative, that the way to start the elevator was to do exactly what he did. He had followed those instructions in the past and followed them in safety. He knew that the leap without more did not sett the elevator in motion, but that there was need in addition to shake it violently from side to side and even at times to pull the operating chains. Did he foresee that there was danger of his slipping when he jumped to a platform less than three feet below the walk? Did he foresee that if the slipped, the jar of the fall would set the elevator going? Were the consequences so obvious that as a reasonable man he must have had them in his...