
    WILLIAM J. JONES, Administrator, &c., Plaintiff and Appellant, v. JOHN ROACH, Defendant and Respondent.
    NEGLIGENCE, OF MASTER, CAUSING THE DEATH OF A SERVANT.
    Contributory negligence of servant.
    In the case at bar, the servant, with others, met their death by the breaking of a bridge between a vessel and a wharf, over which they were moving heavy articles. This bridge was known to be weak and defective by the servants using it, and its use previous to the occasion of the accident, had. been with blocks placed under it, to strengthen the same, and thus it had borne a weight of eighteen hundred pounds. On the occasion of the accident, the men, without any directions from their superiors, used the bridge without the blocks, and under a weight of about two hundred pounds it broke, and fell with the men, and they were drowned.
    
      Held, that the negligence of the servants in using the bridge, with full knowledge of its condition, and without using the props or blocks under the same as in its former use, contributed to the injury, and the master was not liable.
    The cases hearing upon this question, considered and cited, and the following conclusions of law, adopted by the court, as applicable to this case:
    When a servant is fully aware of the difficulties and hazards be is required or expected to encounter, and without objection or protest, undertakes or continues in a hazardous occupation, subjecting himself voluntarily to danger that might be reasonably expected by him, from his knowledge of the facts and circumstances in the premises, he should not be exonerated from the consequences of his own rashness and negligence.
    If in the performance of a hazardous service, he negligently omits to adopt the usual and proper precautions which have been previously required by the master, and which his own experience in the service demonstrated to be useful, as tending to arrest danger or diminish the risks of the service, his want of care cannot be excused by a supposed reliance upon the prudence and judgment of his master, whose wise suggestions and directions he willfully disregards.
    Before Curtis and Sanford, JJ.
    
      Decided, May 1, 1876.
    Appeal from a judgment dismissing the complaint, and directing the recovery by defendants of one hundred and eighteen dollars and fifty-seven cents, costs.
    The action was brought by the plaintiff as administrator of James Jones, deceased, pursuant to Laws of 1847, ch. 450, to recover the damages alleged to have been sustained by the next of kin of decedent by reason of his death, through the wrongful act, neglect or default of the defendants.
    The deceased was a laborer, employed by defendants, and was engaged on the morning of April 30, 1874, in the work of removing her engines, boilers, machinery and iron, from the steamship Ocean Queen, then lying at defendants’ wharf, at the foot of Ninth street, Bast River, in the city of New York. The defendants were ship builders,—and the laborers employed by them about this work, were under the immediate supervision and direction of Frederick H. Ricketts, who was also in the service of the defendants, having charge of the work of taking the machinery, &c., out of the ship. By Ricketts’ direction, the ship’s “ bridge,” formerly used by her officers, as a lookout station, was put across from the vessel to the dock, and was used in sliding the buckets óf the ship’s wheels and other material from her deck to the wharf. This bridge was about twenty-five feet long, with an iron railing on each side, supported by stanchions, its body or flooring consisting of plank an inch thick, supported or stayed on each side by joists four inches in diameter, to which the stanchions of the railing were attached. The bridge was old and rotten, and was broken by a gliding, bucket on the first day it was used for this purpose. By Ricketts’ orders it was spliced at the broken place, and its use continued. A separate gangway, properly constructed, had been provided by the defendants, and was still in nse, by which adequate communication between the ship and shore could be effected, but, by Ricketts’ direction, the work of discharging the iron, &c., was performed by means of this bridge, and not by the gangway as had previously been done. About three weeks after the first fracture, and on April 30, 1874, while Jones, the plaintiff’s intestate, and several other laborers in the employment of defendants, were engaged in carrying over it, from the ship to the shore, a plate of grating, the bridge broke again, and plaintiff’s intestate and two other men were precipitated into the water and were drowned.
    The defective condition of the bridge was manifest and palpable. The wood was rotten and crumbling, and could be crushed in the hand. Anybody could look at it, and see that it was old and rotten. Jones was present, assisting another laborer in sliding down some of the material removed from the ship, when the first fracture occurred. Afterward, it was the practice to insert blocks under the bridge at the point, near the lower extremity, where it crossed the string-piece of the wharf, the effect of which was to diminish the elasticity or spring of the bridge, and thus prevent it from breaking. Under Ricketts’ direction, these blocks were fixed, from time to time, by the men engaged in taking things over the bridge, and Jones often assisted in their arrangement. Thus.blocked, the bridge had sustained a weight exceeding eighteen hundred pounds, two days before the accident, hut it broke under the weight of about two hundred pounds, when not blocked, the men, Jones included, having gone to work, that morning, in the absence of Ricketts, without strengthening the bridge with blocks, according to the accustomed practice.
    At the close of the plaintiffs’ case, the judge, on motion of defendant’s counsel, dismissed the complaint, on the ground that Jones’ negligence in not blocking the bridge, or in going upon it to work, before it was properly blocked, contributed to the accident which resulted in his death.
    The plaintiffs’ counsel duly excepted.
    
      Benjamin F. Russel, for appellant.
    
      Henry Brace, for respondent.
   By the Court.—Sanford, J.

The only question presented on this appeal, is that which was determined adversely to the plaintiff by the learned j udge, before whom the trial was had, when he dismissed the complaint, on the ground that the negligence of the plaintiff’s intestate contributed to the accident which caused his death. The rule of law applicable to cases of this description, is too well settled to require, or to admit of discussion. The only difficulty or embarrassment arises in its application to the varying circumstances of particular cases. The rule is that in actions upon the case for negligence, a recovery can be had only when the injury is caused solely by the defendant’s neglect.

“ If negligence of the plaintiff ” (or, in actions under the statute of 1847, as amended in 1849, if the negligence of plaintiff’s decedent), “contributing to the injury, clearly appears from all the circumstances, or is established by uncontroverted evidence, it is the duty of the court to take the case from the jury and non-suit the plaintiff” (Weber v. N. Y. Central R. R. Co., 58 N. Y. 451).

“It belongs to the definition of the canse of action, that the injury must have been occasioned solely by the negligence of the defendant; and either by direct proof given by the plaintiff, or from the circumstances attending the injury, the jury must be authorized to find, affirmatively, that the person injured was free from fault which contributed to the accident, or the action is not maintained (Reynolds v. N. Y. Cen. and H. R. R. Co., 58 N. Y. 248).

There can be no doubt that an employer is under obligation to use all reasonable precaution in providing for the use of his laborers and servants such facilities and appliances for the performance of their duties, as will not endanger their persons, nor can it be questioned that a servant has the right to rely upon the prudence and caution of his employer, or the agent of his employer, to whose orders he is subject, in so far as the use of implements furnished for the performance of his duties is concerned, unless the dangerous or defective character of such implements is so manifest, that a man of ordinary prudence and intelligence, engaged in similar pursuits, would, on mere inspection, be deterred from using them. Any abuse of the confidence which a laborer has the right to repose in the reasonable care and caution which his employer is under obligation to exercise in his behalf, should subject the latter to liability for any damages arising therefrom. But when the servant is fully aware of the difficulties and hazards he is required, or expected to encounter, and without objection or protest, undertakes or continues in a hazardous occupation, subjecting himself voluntarily to danger that may reasonably be anticipated, and of which he is fully aware, he should not be exonerated from the consequences of his own rashness or negligence, by a mere blind trust in the superior wisdom of his master, or his master’s agent, to whom he is subordinate ; a fortiori, if in the performanee of a hazardous duty, he negligently omits to adopt the usual and proper precautions which have been previously recommended or required by the master, or the master’s representative, and which his own experience has shown to be useful, as tending to avert or diminish the risks to be encountered, his want of care cannot be excused by a pretended reliance on the prudence and judgment of his superior, whose wise suggestions he wilfully disregards. It appears from the evidence of numerous witnesses for the plaintiff, that the condition of the bridge by the breaking of which the plaintiffs’ intestate lost his life, was that of palpable insecurity; that the plaintiffs’ intestate was well aware of this fact; that he had already been warned by a previous occurrence of the kind; that subsequently to that occurrence, the practice of blocking the bridge, so as to diminish its tension, and decrease its fragility, had been adopted; that he had himself often assisted in adjusting the blocks, but, in common with his associates, voluntarily went to work without adopting this very simple expedient, at seven o’clock on the morning of the accident, and the bridge broke within five minutes thereafter.

The testimony of Patrick Daly upon this point is very explicit. He testified to having been present when the accident occurred. Seven o’clock was the hour for commencing work. It was about three or four or five minutes after seven when the bridge broke. Witness and three others, besides Jones, were on the bridge at the time, taking out a plate of grating that belonged to the ship.

Being cross-ex mined, he testified as follows :

“ Q. Do you remember that when you were at work there, before this day of the accident, that this bridge was blocked up underneath, when it was being used? A. Yes, sir ; it had been blocked at the string piece at the edge of the dock.
“Q. Did you notice that, on this morning of the accident, it was not blocked at the string piece? A. Ho, sir; it was not blocked.
“ Q. Describe to the jury, if you please, how it was blocked up ? A. Why, by blocking it on the string piece ; we took the spring out to keep it from breaking. We were bringing down heavy weights on it, and we blocked it, time after time, to take the spring out to keep it from breaking.
“Q. How long before the accident had you and Jones been working, in taking things over that bridge ? A. I had been working for five or six weeks, along with Jones.
“Q. Taking these heavy articles over this bridge? A. Yes, sir; I took eighteen hundred pounds, a donkey engine down on the bridge, and it did not break, about two days before that, and then something over two hundred pounds broke it.
“ Q. How did it happen that you began to work at the bridge, that morning, before it was blocked up ? A. We went to work on our own account, that morning ; we were working at the same job the day before.
“ Q. But why did you go to work without waiting to have it blocked it ? A. It was our own loss, of course; we went to work without its being strengthened, or anything else, that morning; we went to work ourselves.
“ Q. When you said 1 when we were taking things over the bridge we fixed the blocks,’ who did you mean by ‘we?’ A. The party of men who worked in it.
“Q. Who were the men who were engaged in shifting the blocks in the way you have described, when the tide rose or fell ? A. Mr. Eicketts was our boss on that.
11 Q. Who were the men who were doing it? A. John Polan and me, and Ferguson and Jimmy Jones.
“ Q. Was Jimmy Jones the man who lost his life? A. Yes, sir.
By Mr. Russell: Q. Do you mean to say that you ever saw James Jones put a block under that bridge % A. Why, certainly, he put along with me.
“ Q. Did you ever see Jimmy Jones take the block and put it under the bridge ? A. Yes, sir; along with me, he did it, too.
“Q. Did you ever see him do it ? A. Yes, sir.
The Court: Do you mean he himself alone, or with others ? ”
“Mr. Russell: Either way.”

It thus appears, by the uncontradicted testimony of a witness called by the plaintiff, that the usual and customary expedient of blocking the bridge, which had been resorted to, and had proved effectual previously, was on this occasion omitted through the culpable oversight, indifference and neglect of decedent and his associates, who were well aware of the importance and necessity of adopting such a precaution. In the recent case of Plank, administrator, &c., v. The New York Central and Hudson River R. R. Company (60 N. Y. 607), which is in some respects analogous, it was held that the question of contributory negligence was properly submitted to the jury, and that there was no error in refusing to non-suit the plaintiff; but the ground upon which the decision was put, clearly distinguishes the case from that now under consideration, and impliedly recognizes the principle which must govern in its determination. In that case, deceased, a brakeman in the employ of defendants, was, at the time of the accident, in the act of coupling additional cars to the train on which he was employed. In so doing, he stepped into a sluice which ran under the tracks, across which a board or plank was laid ; otherwise the trench was left open. The train of the deceased had been in the habit of stopping there, and he knew of the trench, which had been there over ten years, in the same condition. The accident was in the night season, and there was snow on the ground. It was held that defendant was bound to provide an ordinary and reasonably safe place for the performance of the work of coupling the cars, and that the evidence of defendant’s negligence was sufficient- to require the submission of that question to the jury; also, that the fact of the knowledge of deceased of the existence of the trench, was not sufficient to charge him, under the circumstances, with contributory negligence, as the act in which he was engaged necessarily required his whole attention and thought. In the case at bar, the nature of decedent’s emploj'ment was not such as to engross his attention, to the exclusion of all thought of the hazards he encountered. On the contrary it was his duty, in common with his fellow-servants, to diminish those hazards, as well in the interest of Ms employer as for Ms own sake ; a duty which, in common with them, he wholly neglected to perform. He was not only well aware of the insecurity of the bridge, but had at his hand the means of imparting to it some degree of stability, and on previous occasions had been required so to do. There was nothing in the nature of his employment to distract his attention from the exigencies of the case. Ordinary care for Ms own safety, as well as a proper regard for his employers’ interests should have induced him to adopt the precautions which experience had proved to be necessary, and which he had himself been accustomed to use. Under these circumstances, I think the death of plaintiff’s intestate cannot be attributed solely to the defendant’s neglieence ; and that the evidence would not warrant an affirmative finding that the deceased, “ was free from fault which contributed to the accident.” If not, the action cannot be maintained, and the non-suit was properly directed.

The judgment should be affirmed with costs.

Curtis J., concurred.  