
    DORNEY v. O’NEILL.
    (Supreme Court, Appellate Division, First Department.
    April 4, 1901.)
    1. Master and Servant—Injury to Servant—Duty op BIaster—Place to Work—Sufficiency op Evidence.
    Plaintiff was injured while passing through a dark hall in a building in which he had been employed but a short time, by his eye being injured by a twig which projected from certain debris loaded on a truck and standing in the hall. Plaintiff knew that the trucks were stored in some part of the hall, but he bad never seen them at the place where he was-injured, and did not know that they were loaded with débris. Bmployéswere prohibited from bringing matches into the building, and from leaving the building before the dismissal bell rang, and the lights in the hall were usually turned out by an employé before such bell rang, as they were on the night of the accident. JBelS not sufficient to show, as a matter of law, that the master furnished a safe exit for his servants.
    
      2. Same—Assumption op Risk.
    The evidence was not sufficient, as a matter of law, to show an assumption of risk by the servant.
    Van Brunt, P. J., and Rumsey, J., dissenting.
    Appeal from trial term, New York county.
    Action by Henry B. Dorney against Hugh O’Neill to recover impersonal injuries received while in the employ of defendant. From a judgment in favor of the plaintiff, and from an order denying motion for a new trial, defendant appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and RUMSEY, PATTERSON,. O’BRIEN, and INGRAHAM, JJ.
    Eugene L. Richards, for appellant.
    Charles Steckler, for respondent.
   O’BRIEN, J.

The action was brought to recover for personal injuries sustained by the plaintiff while passing through a dark and narrow passageway in the delivery- department of the store of the defendant, his employer, on the evening of November 25, 1895. There have been two appeals,—one in this court (34 App. Div. 497, 54 N. Y. Supp. 235), when a judgment in plaintiff’s favor was reversed; and the other in the Second department (49 App. Div. 8, 63 N. Y. Supp. 107), when there was a reversal of a judgment dismissing the complaint. This obviates the necessity of giving a general statement of the facts. As appears from the opinion of the Second department, and from the record before us, the evidence given upon the last two-trials differs essentially from that given upon the first trial. Upon the first appeal to this court it was held that, as the plaintiff knew that the “wheelers” were generally left standing in the passageway through which he regularly passed, he assumed the risk incident to their presence, and that a recovery could not be had when it appeared that for some unexplained reason the electric lights, which were usually lit, had gone out, there being no evidence that the ex-tinguishment of the lights was the fault of the master. Upon the-present appeal it appears that, although the plaintiff knew there were “wheelers” used for delivery, which during the three weeks of his-employment in the delivery department he had seen standing in a certain part of the passageway in the daytime, he denied that he had ever seen the “wheelers” at that part of the hall where he was injured, or ever knew that every evening the “wheelers” contained débris consisting of rubbish, paper, hoards, and sharp twigs,—it being, the contact with a sharp twig which caused the injury to his eye. And, further, the extinguishment of certain lights in the passageway,, which caused the darkness, and contributed to the accident, was neither unusual nor unexplained, it appearing that the person in charge of such lights extinguished them when the signal was given to dismiss the employés, and before they had time to traverse the hall on their way out of the building. The most serious question in the case is whether the act of turning off the lights was one to be attributed to the master or was the negligence of a co-servant or co-employé. Upon this, however, .as upon the other questions raised, we think that what was said in 49 App. Div. 10, 63 N. Y. Supp. 107, must be regarded as the law of this case. As therein said:

“The rules of the establishment were read In evidence, from which it appeared that the bringing of matches into the building by employés was prohibited under pain of dismissal. The rules further required employés to remain in their respective places until the bell rings for dismissal, and it was satisfactorily established that each night during all the time plaintiff was employed one of the defendant’s employés, named Rohlfs, to whom that duty was apparently delegated, turned out the lights either at the time of or shortly before the ringing of the dismissal bell, soi that the plaintiff on every occasion was obliged to pass through the hallway in question in darkness. The duty of the master is not only to furnish his employés with a reasonably safe place to work in, and reasonably safe access to and from the premises, but also, ‘having control of the times, places, and conditions under which the servant is required to labor, to guard him against the probable danger in all cases in which this may be done by the exercise of reasonable caution.’ McGovern v. Railroad Co., 123 N. Y. 280, 287, 25 N. E. 373. It cannot be said, as matter of law, that this duty has been discharged by furnishing a hallway through which the servant must pass at night and in the dark, arid in which the master has caused to be placed material of such a character that involuntary contact may cause injuries as serious as that which the plaintiff has sustained. Nor can it be said that the servant, under the circumstances now presented by the record, assumes, as matter of law, the risk incident to the existence of such a hidden menace. Even if he may be held to have assumed the risk of passing through the hall in the dark, so far as darkness may involve risk in view of the condition of the hallway as known to him, yet he cannot be held to have assumed the risk of other dangers not disclosed, and of which there was nothing in the nature either of his employment or of his-surroundings to give him warning.”

We think, therefore, following the decision in the Second department, that the judgment should be affirmed, with costs.

PATTERSON and INGRAHAM, JJ., concur.

VAN BRUNT, P. J. (dissenting).

The defendant in this case was not personally negligent, the evidence showing that he had furnished a proper system of lighting, and established rules, which, if followed, would have kept the passageways sufficiently lighted to have-enabled his employés to go out safely. There is no evidence that the defendant knew that it was the custom of certain of his employés to turn out these lights before the others had gone safely through the hallway and out of the building, and I fail to find any good ground for-holding him liable. The negligence based upon the extinguishment of the "lights was clearly that of fellow servants, for which the defendant is not liable. Hall v. Radiator Co., 52 App. Div. 90, 64 N. Y. Supp. 1002. Nor do I think the presence, of the “wheelers” .filled with rubbish in the passageway was of itself either dangerous or negligent. That appeared to be a necessary and reasonable way of conducting the defendant's business. But, even if it could be held that the place was unsuited to such use, there is nothing to show that the-defendant directed them to be placed there, or directed the loading •of the “wheelers” with the sweepings and rubbish. This was done by persons who likewise were co-employés with the plaintiff; so that upon this branch of the case also.I think the negligence, if any, was that of a co-servant. Upon this appeal the testimony seems to be fuller in showing the conditions under which the lights were extinguished, and the reason for the presence of the “wheelers” in the passageway; and hence I do not think the decision on the former appeal (49 App. Div. 8, 63 N. Y. Supp. 107) is absolutely binding or conclusive. As my conclusion, therefore, is that there was no sufficient proof of the defendant’s negligence, but that the negligence, if any, was that of co-employés, I think that the judgment should be revérsed, and a new trial ordered, with costs to the appellant to abide the event.

RUMSEY, J., concurs.  