
    Samuel Broadbent, Respondent, v. New York Evening Journal Publishing Company, Appellant.
    Second Department,
    November 17, 1911.
    Master and servant — negligence — injury by slipping on inclined' gangway — Employers’ Liability Act — contributory negligence — assumption of risk.
    A servant suing his master to recover for personal injuries under the Employers’ Liability Act is, nevertheless, bound to show freedom from contributory negligence.
    The statute by section 3 only modified the doctrine of contributory negligence by malting the servant’s negligence in continuing in employment after knowledge of the conditions causing the injury a question of fact for the jury, subject to the power of the court to set aside a verdict which is contrary to the evidence.
    
      Where one employed in a newspaper office slipped and fell upon an inclined 'gangway which he knew had been slippery for a long time by reason of oil and he knew that there was a handrail in the' passage for use by employees to prevent slipping, he failed to show freedom from contributory negligence by mere testimony that he “was walking in the ordinary way, at the ordinary gait.”
    Although the Employers’ Liability Act makes the question of ,assumption of risk, and the question as to whether the fact that a servant continues in the employment with. knowledge of the conditions resulting in his injury amounts to contributory negligence, questions of fact to be submitted to the jury, the verdict rendered is subject to the usual power of the court to set it aside if contrary to the evidence.
    Appeal by. the defendant, the New York Evening Journal Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 3d day of March, 1911, upon the verdict of a jury for $2,750, and also from an order entered in said clerk’s office on the 29th day of March, 1911, denying ■ the defendant’s motion for a new trial made upon the minutes in an action to recover for personal injuries.
    The action is brought under the provisions of the Employers’ Liability Act, and the following facts are undisputed:
    The defendant is the lessee of the eighth floor of the Rhine-lander Building, 232-238 William street in the city of New York, where it conducts the business' of printing and- publishing newspapers, employing three hundred men working in day and night shifts of one hundred men each. The plaintiff at the time of his injury had been in the defendant’s employ as a proofreader for several years. In addition to the eighth floor of the Rhinelander Building the defendant occupied in its business a floor-of an adjoining building, twenty-one inches higher than the corresponding floor of the Rhinelander Building. A door was cut through the wall separating the two buildings, and an inclined passageway formed of narrow maple tongued and grooved boards, with a smooth planed surface upon the upper side, connected the two buildings. On one side of this passageway, was an iron handrail. That part of the passageway within the composing room was a little over thirteen feet long, and the incline to the division wall was twenty-one inches. The proof room, in which plaintiff worked, adjoined the composing room. The passageway in its entirety was twenty-four feet and six inches long, four feet wide, connected the two floors and was used by the workmen as a passage to and-from the working rooms in the Rhine-lander Building to the toilet and lavatory in the adjoining building, and for pushing hand trucks, with iron wheels, to transfer type set in forms from the one building to the other. The floors of the adjoining rooms were _ frequently oiled, and the oil tracked by the shoes of the employees and wheels of the trucks over and upon the passageway floor to such an extent that it had been greasy and slippery for years. This condition of the passageway is shown to have been known to all of the defendant’s employees, and the plaintiff does not deny that he was familiar with it: Some employees had slipped and fallen on the passageway floor and in one or two instances had saved themselves from falling by grasping the handrail. On August 9,1910, the plaintiff passed from the room in which he worked, through the passageway to the toilet. On his return he slipped on the floor of this passageway at a point within the composing room, about five feet from the commencement of the incline, and received the injuries for which he has recovered.
    At the close of the plaintiff’s case, and again at the close of the evidence, the defendant moved to dismiss the complaint upon the grounds “that the plaintiff has failed to prove facts sufficient to constitute a cause of action, and upon the further ground that the plaintiff has failed to prove that he was in the exercise of due care at the time the accident happened; and upon the further ground that it affirmatively appears that the plaintiff’s negligence contributed to the accident; and upon the further ground that the condition of the passageway mentioned in the testimony was known to the plaintiff; that the plaintiff knew that the passageway was built upon an incline, and that it was smooth and greasy, and that in continuing to use it and going up and down on it he assumed the obvious risks of the business.” Counsel also moved for a new trial on the minutes upon the ground, among others, that the verdict was contrary to the evidence. These motions were denied and exceptions duly taken. The plaintiff admitted that he knew how this passageway was constructed; that it had been traveled daily by scores of employees, including himself, walking and pushing the hand trucks over it; that it was oily and that there was a handrail on its side for the use of those passing oyer it.
    
      M. DeWitt [Clarence J. Shearn with him on the brief], for the appellant..
    
      Frank Comesky, for the respondent.
   Rich, J.:

It is impossible to avoid the conclusion that the plaintiff knew of the smooth and slippery condition of the passageway upon which he fell. It is established by the testimony of his own witnesses that the condition he complains of had existed for years; that there were no hidden defects but merely the smooth, slippery surface of the floor caused by tracking of oil by defendant’s employees, which was perfectly obvious to the most ordinary observer. The fact that the action is brought under the Employers’ Liability Act is of no materiality in determining the question of plaintiff’s contributory negligence. That statute does not relieve an injured person from the exercise of proper care. It provides that an action under its provisions can only be maintained when the person injured is exercising due care and diligence at the time of his injury. (See Laws of 1902, chap. 600, § 1; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200; since amd. by Laws of 1910, chap. 352.) The modification of the doctrine of contributory negligence provided by section 3 of the statute relates only to the question as to . whether the employee’s continuance in the employment after knowledge of the conditions causing the injury amounts to contributory negligence of itself, which is made one of fact subject to the power of the court to set aside a verdict which is contrary to the evidence. (Kennedy v. New York Telephone Co., 125 App. Div. 846; Roche v. India Rubber, etc., Co., 115 id. 582; Wilson v. New York Mills, 107 id. 99; Chisholm v. Manhattan R. Co., 116 id. 320; Lester v. Crabtree, 125 id. 617; Faha v. Wynkoop, Hollenbeck & Crawford Co., 72 Misc. Rep. 391.) It was incumbent upon, the plaintiff, before he was entitled to recover, to establish affirmatively that, at the time of the accident, he was using “due care and diligence.” In other words, was free from contributory negligence. The only evidence he gave on this subject was: “I was walking in the ordinary way; at the ordinary gait.” This does not meet the legal requirement. With full knowledge of the condition of the passageway, he made no use of the handrail provided by the defendant for the use of its employees to prevent just such accidents, and took no precaution to avoid slipping. He failed to exercise a degree of care commensurate with the condition he knew to exist, and the complaint. should have been dismissed at the close of the evidence. (Bauer v. Empire State Dairy Co., 115 App. Div. 71; affd. without opinion, 191 N. Y. 547; Lofsten v. Brooklyn Heights R. R. Co., 184 id. 148; McCarthy v. Emerson, 77 App. Div. 562; Foster v. N. Y. C. & H. R. R. R. Co., 2 How. Pr. [N. S.] 416; Leinkauf v. Lombard, 137 N. Y. 417, 425, 426.)

While the Employers’ Liability Act makes the question of assumption of risk,, and whether plaintiff’s continuance in employment with knowledge of the conditions resulting in his injury amounts to contributory negligence, questions of fact in the first instance to be submitted to the jury, the veidict rendered is subject to the usual power of the court to set it aside if it be contrary to the evidence. (See Laws of 1902, chap. 600, § 3; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 202.)

The- plaintiff’s contributory negligence was established, and the evidence shows that he assumed the risk of injury in continuing to use the passageway with knowledge of its condition and without adequate precaution. (Welch v. Waterbury & Co., 136 App. Div. 315; Kline v. Abraham, 178 N. Y. 377; Dorney v. O’Neill, 34 App. Div. 497; Vaughn v. Glens Falls Cement Co., 105 id. 136; Kiernan v. Eidlitz, 115 id. 141.)

The jury rendered their verdict for the plaintiff against the plain weight of the evidence, and it was error upon the part of the learned trial justice to refuse to grant the defendant’s motion to, set aside the verdict, and it follows that the judgment and order must "be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Burr, Thomas and Woodward, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  