
    Frank Ehrenfried, as Administrator, etc., of Charles A. Ehrenfried, Deceased, Appellant, v. The Lackawanna Iron and Steel Company, Respondent.
    
      Negligence—death caused, by dumping iron on g charging room floor, which falls through a door in the cupola, on a workman at the bottom thereof— the master is not liable — the get is that of a coemployee—a rule warming the workmen against such a thing is unneccessairy—if necessary the deceased should make it\— assumption of risk — when it need not be pleaded.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the defendant operated a foundry in which there was a cupola for melting iron. This cupola, which was a circular structure forty-eight inches in diameter, extended from within a few feet of the foundry floor through the charging room, which was eighteen feet above the foundry floor, and thence through the roof of the building. When the cupola was ready to be charged, the necessary materials were carried in wheel- , barrows to the charging room, were dumped on-, the floor thereof, and wore then shoveled or thrown into the cup.ola through a door, the bottom of which was one and. a half inches above the level of the floor of the charging room. The process of charging the cupola was under the supervision of the cupola tender and it was his duty, after each blast, to clean out the cupola and repair whatever defects he found therein.
    The plaintiff’s intestate was the cupola tender, and while in the bottom of the cupola cleaning and repairing it, and. while other employees of the defendant were engaged in wheeling scrap iron and: other materials into the charging room preparatory to another blast, an iron iwheel and another piece of iron of irregular shape, upon being dumped from one of the wheelbarrows, rolled several feet through the door of the cupola striking the plaintiff’s intestate and killing him.
    
      The intestate had been acting in the capacity of cupola tender for a period of two months. At the time he was first employed as cupola tender the bottom of the cupola door was eighteen inches above the level of the floor of the charging room, but two days after his employment the cupola was lowered so that the door was in the situation in which it was at the time of the accident. All the work done each day in connection with the cupola was either done by the intestate personally or was done under his direction and supervision.
    
      Held, that the jury could not be permitted to say that the defendant was negligent because the bottom of the cupola door was not raised ten, twenty or thirty inches above the floor of the charging room;
    That negligence on the part of the defendant could not be predicated on its failure to promulgate a rule warning employees working in the charging room not to allow pieces of iron to drop into the cupola when they knew or had reason to believe that another employee was working. at the bottom of the cupola, as an employer is not bound to promulgate such a rule directing his employees not to do an act which would necessarily result in injury to another employee;
    That if such a warning was necessary for the guidance of the employees work- , ing in the charging room, it was the duty of the intestate to give it;
    That the employee, from whose wheelbarrow the piece of iron in question fell was a coemployee of the intestate, and that the defendant was not liable for his negligence;
    That the intestate had assumed the risk of the accident which befell him;
    That all the evidence establishing the assumption of risk having been introduced by the plaintiff, such defense was available to the defendant, even though it had not been pleaded in the answer.
    Spring and Hisco'ck, JJ., dissented.
    Appeal by the plaintiff, Frank Ehrenfried, as administrator, etc., of Charles A. Ehrenfried, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 16th day of February, 1903, upon the dismissal of the complaint "by direction of the court after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office, on the 16th day of February, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was commenced on the 20th day of May, 1902, to recover damages sustained because of the death of plaintiff’s intestate, alleged to have been caused solely through the negligence of the defendant.
    
      Thomas A. Sullivan, for the appellant.
    
      Louis L. Babcock, for the respondent.
   McLennan, P. J.:

The facts are hardly in dispute, but in so far as they are a non-suit having been granted, the plaintiff is entitled to the inferences most favorable to her which may be legitimately drawn therefrom. ( Veazey v. Allen, 173 N. Y. 359, 367.)

The defendant, in connection with its business of manufacturing steel, was engaged in operating a foundry in which- was constructed a cupola or furnace for the purpose of melting iron. The cupola was a circular structure, lined with fire brick, forty-eight inches in diameter, and extended from within a few feet of the foundry floor up through a charging room or scaffold, so called, and through the roof of the building. About eighteen feet from the bottom of the cupola there was an opening twenty-seven inches wide and thirty-three and one-half inches high, called a charging door, which opened into the charging room, the bottom of which opening was one and one-half .inches above the level of the floor of the room, which was made of' iron. The iron to be melted and other material used"in connection therewith, coal, coke and limestone, were conveyed in wheelbarrows into the charging room and deposited on the floor near the cupola door in separate piles. When the cupola was ready to be charged a fire was started in the bottom, and such materials, in proper proportions, were shoveled or thrown into it through the door, all as directed by and under the supervision of a cupola tender. After each blast, and before again charging the cupola, it was necessary to clean it out and repair the lining, by plastering portions of it with cement and putting new fire brick in the place of those found to be defective. This work was done by the cupola tender personally.

On the morning of the 5th day of May, 1902, plaintiff’s intestate, who at the time was in defendant’s employ as cupola tender, was twenty-nine years of age, and, so far as appears, was in every way qualified to discharge the duties of such position, was in the bottom of the cupola, cleaning and repairing it. Other employees of the defendant were engaged in wheeling scrap iron and other materials to be used in the blast-into the charging room and dumping them on the floor. A circular piece or wheel of such iron, and another of irregular shape, when dumped from one of the wheelbarrows, rolled several feet through the door of the cupola, one or both of them striking plaintiff’s intestate and injuring him in such manner that he died soon after. To recover the damages sustained by his death this action is brought.

The deceased entered the service of the defendant in January, 1902, as a common laborer in the foundry. A month after he was put to work wheeling iron, coke and limestone to be used in the cupola into the charging room. He continued at that work until March 21, 1902, when he was made cupola, tender and was put in charge of the cupola. He worked in such capacity from that day until his death, nearly two months, personally cleaning out and repairing the cupola each morning, while the iron and other materials were being taken into the charging room under his direction ; and after he had put the cupola in proper condition and started a fire in the bottom, either putting the iron and other materials, through the door into the cupola himself, or causing it to be so put in by others under his supervision and exactly as directed by him.

On the 23d day of March, 1902, after plaintiff’s intestate became cupola tender, the cupola was lowered. Prior to that time the bottom of the cupola door was eighteen inches above the level of the floor of the charging room. Plaintiff’s intestate assisted in making the change; knew exactly what the conditions were after such change was made; every feature of the situation was open, notorious and visible, and for nearly two months after the change was made the cupola was used and operated under the direction and supervision of the deceased. During all that time he knew how the iron and other materials were conveyed into the charging room; where such materials were dumped upon the floor; knew that his duties required him to be in the bottom of the cupola every morning. The evidence establishes that all the work done each day in connection with the cupola was either done by the deceased personally, or under his immediate direction and supervision.

It is suggested in appellant’s brief that the deceased was not present when the cupola was lowered, and did not assist in making such change. We think that is not the fair import of the evidence, but we do not consider it of importance, because eoncededly the deceased knew the change had been made, and had operated the cupola as foreman or tender for a period of nearly two months after it had been lowered.

The evidence wholly fails to establish that the defendant was guilty of negligence which caused the injury complained.of, and is not sufficient to raise a question of fact for the jury in that regard. In what respect did the defendant neglect to perform any legal duty imposed upon it ? It must be conceded that it had the right to operate a cupola with a door through which the necessary materials might be put into it, the bottom of which was only one and one-half inches above the level of the floor upon which such materials were deposited. The jury cannot be permitted to say that the defendant was negligent because the bottom of such door was not raised, ten, twenty or thirty inches above the level of the floor.

It is said that with a construction such as existed here, the defendant was guilty of negligence because it did not make and promulgate proper rules governing the conduct .of its employees, and such as would have protected an employee working in the bottom of the cupola-against the danger of being struck by pieces of iron rolling from the floor into the cupola through the door. Such rule; if promulgated, would have been nothing more or less than a warning to the employees working in .the charging room to be careful not to •allow pieces of iron to drop into the cupola when they knew or had reason to believe another employee was working at the bottom. It would state, in effect, that no employee must do an act which necessarily and obviously will result in injury to another employee. We think there is no rule of law which requires a master to make and promulgate a rule of that character; but if such warning, or any other, was necessary for the guidance of the employees working in the charging room, it was the duty of the deceased to have given it. Such employees were working under his direction; he was their boss and controlled their actions, and he fully understood all the dangers to be apprehended. If a foreman of a gang of men engaged in digging a trench, assumes to go into it, and is struck by a falling stone permitted or caused to fall by one of the men working above, the master is not liable because he failed to make rules warning the employees of the danger of permitting a stone to fall under such circumstances, or because he failed to make a rule prohibiting any employee from permitting such occurrence.

In the case at bar the accident resulted because of the negligence of a coemployee, viz., the man from whose wheelbarrow the piece of iron in question fell. He knew the deceased was in the cupola, and he carelessly dumped his load of iron too near the cupola door, in view of the fact that in the load there was an iron wheel which might roll almost any distance. We think that for the negligence of such eoemployee the defendant was not liable.

The case, however, was disposed of by the learned trial court on the broad ground that the deceased assumed the risk of the accident which befell him, and, therefore, that the plaintiff was not entitled to recover. As already pointed out, plaintiff’s intestate knew for at least three months previous to the accident the exact condition of the cupola; precisely how it was operated; the manner of doing the work by the other employees; in fact, as is shown, for more than a month previous to the accident it was all done either by him personally or under his direction and supervision. Under those circumstances we think it clear that he assumed the risk, as was held by the learned trial court.

The only suggestion made in answer to this proposition by the learned counsel for the respondent is that such defense was not pleaded, and that, therefore, under the decision in Dowd v. N. Y., O. & W. Ry. Co. (170 N. Y. 468) was not available to the defendant. All the facts tending to establish the defense of assumption of risk were proven by the plaintiff without objection. At the close of the plaintiff’s case a motion for a nonsuit was made upon the ground, among others, that all the “ conditions there were perfectly plain (and) obvious to the deceased in doing the work that he did.”

The motion was resisted upon the ground that the defense of assumption of risk was not pleaded in the answer.

After a full statement of the evidence bearing upon that question, and of the law applicable thereto, the learned trial court granted the nonsuit, stating at the close that “he (the plaintiff’s intestate) knew all the conditions which surrounded him, he continued in the employ, he worked there days and weeks,' and finally received the injury which resulted in his death. My notion is that the risk was assumed by this man, and there can be no recovery in this case.”

We think the Dowd Case (supra;) is not authority for the proposition that where all the evidence which establishes the assumption of risk is introduced by the plaintiff, such defense is not available to the defendant, even though not pleaded. The failure of the trial court to direct that the pleadings be amended to conform to-the evidence introduced without objection, even if that should have-been done, in no manner injured the plaintiff.

It follows that the judgment and order appealed from should be affirmed, with costs.

Concurring mem. by Williams, J., in which Stover, J., concurred.

Spring and Hiscock, JJ., dissented

upon the ground that the-reasoning in Dowd v. N. Y., O. & W. Ry. Co. (170 N. Y. 468) leads to the rule that the assumption of risk is an affirmative-defense which must be pleaded, and that if this is the correct rule, compliance therewith is not obviated because the plaintiff in sustaining other issues has presented evidence which defendant might, utilize to sustain said defense, the objection being made in due time and form that the same had not been pleaded.

Williams,, J. (concurring):

I concur in the opinion of McLennan, P. J., for affirmance, but. desire to say in addition:

It is not necessary to plead assumed risks.”

During all the years that negligence actions have been brought by employees and litigated it has never been held to be essential, and such a rule should not now be imported into the law relating to-those cases. The only excuse for doing so is the claim that the Court of Appeals so held in Dowd v. N. Y., O. & W. Ry., Co. (170 N. Y. 459). The question was not raised in that case, was. not discussed nor was this rule there held. The only intimation in the case looking in that direction was in a question asked by the judge who wrote the opinion. He did not answer the question in the affirmative and the editorial head note does not refer to it. The question there being considered was merely' where-the burden of proof upon the question of assumed risk rested, a!nd the court held that it was upon the defendant. Of that there could be no doubt. That, however, is far short of a holding that it must be affirmatively pleaded in the answer. The allegation in the complaint in an employee’s action is that the defendant was negligent in, failing to penorm a duty owing to the employee to furnish (for instance) a reasonably safe place to work. In effect, the allegations are that the duty was owing to the plaintiff and that it was not performed. A general denial, in. effect, denies that the duty to the plaintiff existed. Prima facie the duty wás imposed upon the defendant, but under the general denial the defendant may prove that the duty in the particular case did not exist because the plaintiff assumed the risk of working in the place as it was, although it may have been unsafe. The general denial should be held sufficient to enable the defendant to prove such assumption of the risk.

But even if technically or theoretically the court can reason out the necessity of ah affirmative allegation, still such a rule has never before been held, although actions for negligence have been brought and maintained by employees since a time when the memory of man runneth not to the contrary* and I think, therefore, there was no design in the Dowd case to establish this new rule of pleading, and that the Court of Appeals will not so hold when its attention is brought to the direct consideration of it. It was not so held in the Dowd case and I cannot believe it will be held in any other case.

Stover, J., concurred.

Judgment and order affirmed, with costs.  