
    Jeremiah F. Lynch, Respondent, v. American Linseed Company, Appellant, Impleaded with The Linseed Oil Company, Defendant.
    Second Department,
    November 29, 1907.
    Master and servant — negligence—■ injury in grain elevator — safe place to work-^-verdict not excessive.
    The fact that an employee engaged in shoveling grain into an elevator shaft containing rapidly revolving buckets may appreciate the danger of being carried toward the buckets by the shifting' grain, does not absolve his master from exercising every reasonable caré and precaution to guard against every probable danger to the servant.
    The master necessarily assumes the duty of furnishing a safe place to work, and the assumption of the risks of his work by the employee presupposes adequate protection by the master from all'avoidable danger.
    In an action to recover for injuries so received, testimony by the defendants that they never knew of a .similar accident disproves their contention that the dan- . ger was so obvious as to place the-risk upon the plaintiff.
    When in such action it is shown that additional bars across the' opening to the revolving buckets would have been a protection and that such bars were used in other elevators and that the defendants failed to provide a method for stopping the machinery quickly in case of accident and failed to warn the plaintiff, a new employee, of the danger, it is for the jury to say whether the defendants were negligent.
    The fact that others used an elevator of the same construction as that of the defendants does not relieve them from responsibility, if the defect was obvious and discoverable by ordinary inspection.
    When an employee so injured had only been employed for a few hours and, when descending into a grain barge to shovel grain, followed the method of other workmen, and did all that he could to save himself from being drawn toward the revolving buckets by the sliding grain, he is not chargeable with contributory negligence. ' ■
    When the injuries to the plaintiff’s legs caused prolonged suffering and were of such a nature that after six years he is unable.to earn his living, a verdict of $20,000 is not excessive.
    Appeal by the defendant, the American Linseed Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 12th day of October, 1906, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 31st day of December, 1906, denying the defendant’s motion - for a new trial made upon the minutes,
    
      
      Frederick Hulse, for the appellant.
    
      Richard J. Donovan [Herbert D. Cohen with him on the brief], for the respondent.
   Woodward, J.:

This case comes on appeal for the third time. On the first trial a verdict was awarded the plaintiff in the sum of $10,000. The judgment entered thereon was reversed on the ground that the plaintiff had assumed the,risk, and a new trial was ordered. (95 App. Div. 628.)

On the second trial the jury gave the plaintiff a verdict for $5,000; ■the complaint- was dismissed after the verdict was rendered, the court having reserved its decision on a motion to dismiss, and from the order and judgment entered thereafter the plaintiff appealed to this court, by which the judgment and order were unanimously reversed and a new trial ordered. (Lynch v. American Linseed Co., 113 App. Div. 502.)

On the third trial a verdict was found for the plaintiff in the sum of $20,000, and from the judgment entered thereon comes this appeal.

The action is for negligence, the plaintiff alleging injuries which have made him a cripple for life. The injuries are conceded, but as to its responsibility therefor the defendant sets up a general denial.

The plaintiff was employed by the defendant in unloading a barge of linseed at its works in Port Bichmond, S. I. The grain was hoisted into the warehouse by means of an elevator, the leg of the shaft being sunk deep into the grain in the boat. In the elevator was an endless chain of steel buckets which revolved with such rapidity as to become virtually invisible. The seed was about four feet below the deck, and as soon as the grain around the bottom of the shaft was exhausted the men would go down to shovel the seed toward the leg, which, as it continued to drop would then draw up the grain as before. Sometimes, before the grain around the leg was fully exhausted, the linseed which, according to the testimony, was of all seeds “ the most quick with life,” would by its own gravity slide down with such force toward the open space that a man might be carried with it into the lower part of the leg, a space about two feet wide by two and a half feet higlq where the buckets could be seen to revolve. The upper part of this space was sometimes covered by a slide, but this if appears was often down, and the plaintiff, who had been employed at this work but a few hours, claims that .he liad never seen this space uncovered until the time he was injured. '

On the day of the accident the plaintiff, with others, was. ordered below to shovel grain into the leg. It seems-that the only way of descending to the hold was through the hatch in which the elevator was running. The opening was juát large enough to admit a man’s body, and there was nothing to go down by except the combing of the hatch and the elevator leg. The plaintiff, following the example of the other workmen, put one hand on this combing and the other on the elevator,, and let himself down into the seed. The suction, caused by a sudden exhaustion around the bottom of the leg, drew him feet foremost into the unprotected part of the ele-, vator beneath the seed. The revolving steel buckets mangled his legs and crushed the bones, and as it was some time before the. machine could, be stopped, he suffered injuries which have crippled him for life. He was in the hospital for months and has tried many doctors, but still suffers. Whether the defendant was negligent was a question for the jury. The defendant assumes that the danger was fully appreciated by the plaintiff^ but that, however, does not relieve the defendant from every reasonable'care and precaution to guard against every probable danger to its servant. The employer necessarily assumes the duty óf furnishing a safe place for his employees. ' The assumption of his work by the employee always presupposes the adequate protection by the master from all avoidable danger. The' place where tile plaintiff was forced to work proved to be unsafe and dangerous, and the testimony of the defendant’s witnesses that they had never known of' a similar accident only disproves the defendant’s .contention that the danger was so obvious as to^ place the whole risk upon the plaintiff.

The question is, were any precautions omitted which a prudent man would be likely to have taken to avoid accident and to obviate danger. If, as the defendant argues, reasonable care is here to be construed from what is customary, then surely he has little to sustain him. .From the new testimony, which I consider very important, brought out at the. last trial, much of it by the defendant’s own witnesses, it appears that additional bars and rungs would have been a considerable protection, also that such could easily have been provided and that they were in use at several other elevators belonging to other companies. The jury was, therefore, authorized to find the defendant negligent because of their omission. Reasonable care is what ought- to have been observed. It was shown that there was no ladder on the leg, that such a ladder was important and could very easily have been provided. The defendant holds that because of the omission of such rungs it does not follow that the accident would not have happened. I think, however, that it is safe to consider such omission as one of the proximate causes. If the facts of -the situation were such that an accident could reasonably have been foreseen by the employer, and if also it appears that no reasonable precaution was taken to prevent such accident, the plaintiff is entitled to recover. The jury so found, and 1 fail to see how they could have done otherwise.

In Texas & Pacific R. Co. v. Behymer (189 U. S. 468) the court says: “ What usually is done may be evidence of what ought to be done, -but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” Of such reasonable prudence the defendant was able to furnish no proof. Furthermore, what was a reasonably safe place was for the jury to determine.

The case of McGovern v. Central Vermont R. R. Co. (123 N. Y. 280), in many respects like the case at bar, holds that “ The place in which the master required the servant to work was clearly unsafe, and it was a question for the jury to determine whether the master had adopted all reasonable precaution .t.o shield him from the danger he was exposed to in the place assigned to him for labor, before requiring him to occupy that place.”

The defendant’s point that there were others who used an elevator similar to that used by it does not relieve it of its responsibility, for, as in the case of Gottlieb v. N. Y., L. E. & W. R. R. Co. (100 N. Y. 462), “ the defect was an obvious one, easily discoverable by the most ordinary inspection.”

It is plain, furthermore; that the plaintiff, who was an ignorant laborer, having been engaged in this work for only a few hours, should not have been expected to fully appreciate the danger of the place. Nor does it follow that if lie had been warned and had had a- thorough appreciation of the danger he would have been able under the circumstances to save himself from the rapidly-moving linseed; for it was. shown that when the linseed was hardenéd into cakes, as was often the case, it had a tendency to fall in masses, and it was partly to this that the accident was due. The leg, therefore, should have been guarded.

There was much new testimony by experts to the effect that bars across the opening would not have interfered with the operation of the machinery, while it would have given adequate protection to the men.

It was shown, too, that the plaintiff in no way contributed to the accident. Being a new man, he followed the procedure of the other workmen, and as he was being drawn, down by the falling seed he did all he could' to save himself. He used ordinary diligence and due care, and more should not be required of him.- The defendant, on the other hand, should have known that it was only a question of time when such an accident would happen. Inasihuch as they failed to warn the plaintiff and to provide proper means aiid methods of access and adequate protection, and also because, they sent down the laborers while the machinery was running and before the seed around the leg was sufficiently exhausted, and furthermore because they failed to have a legtender, such as was employed at other places, and to provide a method to stop the machinery quickly in case of accident, the defendant is clearly responsible.

In' view also of the plaintiff’s terrible injuries, which after six years- still render him unable to earn his living, and of his prolonged suffering, I do not consider the verdict excessive'.

The judgment and the order appealed from should be affirmed, with costs.

Present — Woodward, Jenks, Hooker,-High and Miller, JJ.

Judgment and order unanimously affirmed, with costs. "  