
    John J. A. Ryan, Respondent, v. Third Avenue Railroad Company, Appellant.
    
      Negligence—injury to an employee while in a pot hole between the rails of a street railway—the company is not liable for thefailure of a competent foreman to warn the employee of the approach of a car — assumption of risk.
    
    In an action brought to recover damages for personal injuries it appeared that the defendant owned a street railroad operated by a cable; that it was necessary from time to time to oil and replace the wheels upon which the cable ran; that-in order to do this work it was necessary for the oilers to go into openings, called pot holes, located between the rails under the surface of the street; that a foreman of the defendant was employed as an oiler, and that the plaintiff was. employed as the foreman’s helper, and in the performance of his duties was subject to the foreman’s directions ; that when a workman was in a pot hole id was necessary that some person should stand guard near the hole, to prevent j trucks from driving into it and to warn the workman in the hole of the approach of cars in time for him to get out of the hole and enable them to pass; that the foreman and the plaintiff alternated in going into the pot hole and in standing guard; that on the occasion of th,e accident the plaintiff was working in a pothole which, as claimed by him, was too small to permit him to remain therein. while a car was passing ‘over it, and that in consequence of the failure of the foreman, who was standing guard, to warn the plaintiff of the approach of a car, the latter was struck by the car while attempting to come out of the hole. The foreman was a competent person to guard the hole.
    
      Held, that when the defendant had stationed, a competent person to guard the hole while the plaintiff was working therein, it had discharged its entire duty with respect to the plaintiff, and that it was not liable for the failure of the foreman to warn the plaintiff of the approach of the car;
    That the plaintiff assumed, among the other risks of the employment, the risk that the foreman might become inattentive, careless and neglectful of his duties and omit to give the warning when required.
    Appeal by the defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of New York on the 7th day of July, 1903, upon the verdict of a jury for $3,500, and-also from an order entered in said clerk’s office on the 1st day of July, 1903, denying the defendant’s motion for a new trial made upon the minutes, and granting the plaintiff’s motion for an extra allowance.
    
      Bayard H. Ames, for the appellant.
    
      Frederick W. Block, for the respondent.
   Hatch, J.:

This action is brought to recover damages for injuries claimed to have been received through the negligence of the defendant. The plaintiff was in the employ of the defendant as a helper to one Short, a foreman of the defendant employed as an oiler. It was the duty of these men to oil the wheels which carried the cable,, the motive power of the car, beneath the surface of the street, and' also to repair the same and to put in new wheels when required. In the performance of his duties the plaintiff was subject to the directions of Short, the foreman. In order to do the work it was necessary to go into an opening called a “ pot hole,” located between the rails and underneath the surface of the street. It was claimed upon the part of the plaintiff, and evidence was given in support of the claim, that the “pot hole ” was not large'enough to permit him to remain therein during the passage of a car; that he was required to place his head and body below the surface of the street during the performance of his work, in consequence of which he was not able to protect himself from passing cars and other vehicles upon the street. In order, therefore, to render the place safe during the performance of the work it became nécessary that some person should stand near the hole to prevent trucks from driving into it,, and to warn the plaintiff of the approach of cars in time for him to get out > of the hole and enable them to pass. While Short was the foreman and the plaintiff was subject to his direction, yet they alternated in going into the hole and performing the duties required therein. When plaintiff was in the hole Short watched to warn vehicles, and also to warn the plaintiff of the approach of the car, and plaintiff performed the same service when Short was in the hole'. On the 2d day of July, 1897, the plaintiff and Shortkvere engaged in putting in a new wheel on Third avenue, near Sixth street. Plaintiff was in the hole and Short was standing guard. The cars were running on about a minute headway. Plaintiff testified that he had been in the hole several minutes, had not received any warning of approaching cars, and having á premonition that he ought,to receive such warning concluded to get out of the hole without it. As he got up he saw a car approaching at full speed ten or fifteen feet away; that he attempted to jump from the hole; the. car caught him before he could leave the track, inflicting the injuries of which Jhe makes complaint. ■ Upon the part of the defendant it was claimed ihat the hole was sufficiently large for a person to remain therein «during the passage of a car j that no warning was required of its approach, but that a guard was necessary for the purpose of keep ing other vehicles passing on the street away from the hole and of informing the person therein when it was necessary for him to come ■ Up that it was safe so to do; that upon the occasion in question Short was present attending to his duties, and that the plaintiff, without giving any notice and when a car was close upon him, arose from the hole; that Short called to him to get back; plaintiff failed' to obey the direction and attempted to.get out, when he was caught by the car. In general these were the two features presented by the evidence in the case. It is a question of some doubt as to whether the verdict can be supported upon the evidence if it rests upon the size of the hole. It appeared without dispute that these holes were uniform in size; their dimensions were given, and from them it seemed to leave space sufficient for a person to remain in the hole without liability to injury during the passage of a car. The size of the hole seems to demonstrate such condition as a physical fact, and if so, liability could not be predicated upon failure to warn of the approach of a car, unless the person was ready at the time to leave the hole, when warning as to safety would be required.

We do not, however, rest our decision upon this ground, as we think error was committed in the submission of the case to the jury which necessarily requires a new trial. Among other things, the court charged: I have decided, however, to present this case to you upon the theory that, if certain facts are established to your satisfaction, the master could not delegate certain duties to Mr. Short in this case which I will later explain so that you may not misunderstand what I am aiming at. Any act of omission which was incumbent upon Mr. Short, upon a certain aspect of the case, would be one for which the defendant would be answerable. If it were not. for that fact, gentlemen, the plaintiff would not have a case.” The court then proceeded to charge that.if the “pothole” was not of sufficient size to enable the plaintiff to keep his entire body under the level of the sti'eet, a duty was devolved upon the defendant to take such precautions as would insure plaintiff a safe place to work, and that it was incumbent upon the defendant in order to make the place safe to have some one to warn the plaintiff of the approach of a car and warn away other vehicles. The court then stated: “ So that, you see, the crucial point of the case is, was the place where the plaintiff was working at the time such a place that he could not get his entire body within that opening underneath the level of the street ? ” The court then submitted the question as to whether the plaintiff was in such position as. to be cognizant himself of approaching danger, and if so, that he was bound to take heed of it and avoid it if possible, in order to relieve himself of contributory negligence. The court then charged upon the subject of the warning required, based upon the respective theories of the parties, and said, in that connection : “ I think it is proper to say to you that as the case is presented, I do not think the question of warnings has really much to do with this case.” The court then charged that when a person is engaged in a business which is dangerous and hazardous the law imposes upon him the assumption of the obvious risks of the employment, and that if the master has discharged all the duty resting upon him and an accident happens through no fault in this respect, but because the work itself is dangerous, there exists no liability upon the part of the master. And finally the court charged: “ If you find, gentlemen, in this case, therefpre, to sum up, that the accident happened solely through the negligence of the defendant, because of a failure on the part of Mr. Short to warn the plaintiff, and because you believe from the facts that the plaintiff could not have worked under any other conditions than those which would have compelled him to keep his body beneath the level of the ground, and would not have permitted him to see an approaching car unless somebody warned him; if ybu 'believe that, and if you also believe that the plaintiff did not, by any act of his, contribute to this accident by any negligeñt act, then you have a right to find for the plaintiff, otherwise, for the defendant.”

To these several quoted portions of the charge the defendant excepted and it requested the court to charge: If it was the duty' of the foreman Short to give warning • of the approach of the car, and if his failure to give such warning was the cause of the accident, then such failure on his part is the.negligence of a fellow servant of the plaintiff and’ not of an alter ego of the defendant, and your verdict in that event must be for the defendant.” The court refused so ,to charge and the defendant excepted. Upon the motion for a new trial the court held that Short was the alter ego of the defendant; that its duty extended not only to providing a competent person to stand guard and give warning as the circumstances required, but that the duty extended to-the performance of the act of warning, and, therefore, that the defendant could not relieve itself from liability by providing a competent person, but was likewise respónsible for the manner in which he performed his duties. Under the submission by the court, the evidence justified the jury in finding that the hole was too small for the plaintiff to remain in the same during the passage of a car, and finding this fact they were instructed that the duty of the master was to provide a s'afe place commensurate with the dangers to be encountered and that the obligation resting upon the master was not only to provide a safe place but to see that it continuously remained safe, even to the detail of giving the warning which the circumstances required. It is evident, therefore, that the obligation which was imposed upon the master by the charge was that of insuring the safety of the plaintiff during the performance of ■ his 'work. The obligation which rests upon the master in respect of the place where the servant is to perform his work is to provide a reasonably safe place in which to prosecute the same considering the nature of the service in which the employee is engaged. When he has discharged that obligation it meets all the requirements óf the law, and there is no liability imposed upon the master for injuries which result to the servant proceeding from the manner of the performance of a detail of the work. ( Ward v. Naughton, 74 App. Div. 68.) The servant assumes, in entering upon his employment, all of the risks incident thereto and of all dangers which are open and obvious. (Crown v. Orr, 140 N. Y. 450.) In the present case the plaintiff had full and complete knowledge of the situation. He knew the character of the work and the place where he was to perform it. He knew the dangers to be apprehended and guarded against. He was informed concerning the approach-of the cars and the general course of management of other vehicles upon the street. He was aware that proper protection in his employment required that somebody should be placed to warn him of approaching danger which he was unable to observe. Under these circumstances ■ he had the right to expect and also to demand from the defendant a provision for warning which would insure a reasonably safe place, considering existing conditions. The plaintiff was informed that the defendant. had undertaken the discharge of this obligation by appointing a competent person to guard the place where he worked and so make it safe. After such provision was made he entered voluntarily upon the1 performance of his duties. The defendant having discharged towards him every obligation which the law imposed upon it, could not be charged with the neglect of the person stationed to give the warning, in failing to give it, unless the rule of liability be so far extended as to make the defendant an insurer of plaintiff’s safety. This obligation it did not assume; nor does the law impose it. The defendant having' discharged the obligation which the law imposed, the plaintiff must be deemed to have assumed the risks incident to that situation, among which was the risk that the person placed to warn him of danger might become inattentive,, careless and neglectful of his duties, and omit to -give the warning when required. In Cullen v. Norton (126 N. Y. 1) the court, through Judge Peokham, said: But the manner of the performance.of each of the various details of the work by which, as a whole, it was to be conducted, rested necessarily upon the intelligence and care and fidelity of the servants to whom these duties were, intrusted. It can’t be that every time a blast was exploded and the men came back, the manner of their distribution for work was a duty of. the master, and that the order of a foreman, mis takenly or negligently given, must be regarded as the order of the master in filling a duty to furnish a safe place to work in. It is, aS it seems to me, a detail of the working or management of the business, the risks attending which have been assumed by the party .taking employment.” This language finds precise application to the facts of this case and is controlling of' it. Its doctrine has never been questioned, but, on the contrary, has been repeatedly reaffirmed by the Court of Appeals (Perry v. Rogers, 157 N. Y. 251) and in the Supreme Court (Ulrich v. N. Y. C. & H. R. R. R. Co., 25 App. Div. 465) and in numerous other cases. In assuming the risk of this situation the person selected by the master to perform it, if he be competent in all .■ respects to discharge, it, stands in relation to the plaintiff, no matter ivhat be his grade, as a coservant, and for his act of negligence the master is not responsible.

The court below relied upon Hankins v. N. Y., L. E. & W. R. R. Co. (142 N. Y. 416). The neglect in that case was of a, train dispatcher in ordering the movements of two trains which resulted in their collision, whereby a servant was injured, and it was held that in the discharge of that particular duty it was the master who acted. The train dispatcher controlled the entire situation with respect to the movements of the trains, was acquainted with and controlled the schedule by which they moved. This was the particular business of the master and its performance could not be delegated. The act itself created the condition which made the place unsafe, and, under such ■ circumstances, the master may not shelter himself from responsibility behind the act of the servant. The distinction between that case and the present is pointed out in Savage v. Nassau Electric R. R. Co. (42 App. Div. 241; affd. on appeal, 168 N. Y. 680).

The court was, therefore, in error in charging that the failure of Short to warn the plaintiff was the act of the master, which could not be delegated, and the defendant was entitled to the charge upon that subject which it requested.

It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  