
    Samuel Kearney, Respondent, v. Henry L. Hanlien, Doing Business under the Firm Name and Style of Henry Hanlien & Son, Appellant.
    First Department,
    March 8, 1912.
    Blaster and servant—negligence — injury by revolving derrick—safe place to work—when rule not applicable — change of conditions by servants — assumption of risk—action at common law—Labor Law.
    Ordinarily the duty of a master to furnish his servants a safe place in which to work applies to permanent conditions. It does not apply where the place itself is safe but is rendered unsafe by the negligence of fellow-servants.
    Thus, where employees in a stoneyard were constantly required to change the position of heavy blocks of stone and placed one of them so hear to a revolving derrick that the plaintiff, an employee of thirteen years’ experience at the work, was caught between the stone and part of a house at the base of the derrick when it revolved, the master cannot be charged with liability in failing to furnish a safe place to work.
    Moreover, considering the length of time the plaintiff had worked in the yard under similar conditions and as he had operated the derrick him. self, he was chargeable with knowledge that he might be caught in the manner aforesaid, and when he placed himself in the position where the accident might occur he assumed the risk, the action being at common law.
    Section 303 of the Labor Law relating to assumption of risk has no application where the action is at common law. But, it seems, that where said statute is applicable it only requires the submission of the assumption of risk to the jury in the first instance and the court may still set aside the verdict on that issue as against the weight of evidence.
    Appeal by the defendant, Henry L. Hanlien, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 20th day of July, 1911, upon the verdict of a jury for §1,500, and also from an order entered in said clerk’s office on the 18th day of July, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      E. Clyde Sherwood [Allen E. Brosmith and William B. Davis with him, on the brief], for the appellant.
    
      William A. Reynolds, for the respondent.
   Laughlin, J.:

The action is brought to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant on the 19th day of July, 1909, in a stoneyard on premises known as 400-417 One Hundred and First street. The liability is predicated wholly upon the common law. It is charged that the defendant failed to furnish the plaintiff a safe place in which to perform his duties and a sufficient number of fellow-servants, and operated a derrick negligently constructed, and failed to promulgate and enforce necessary rules for the safety of the plaintiff. The answer put in issue the allegations of the complaint charging the defendant with negligence, and further pleaded that the plaintiff, with full knowledge of the conditions, assumed the risk of injury from the cause which resulted in the injuries of which he complains.

The plaintiff had been employed in the yard for a period of about thirteen years, during which time the conditions remained substantially the same. His duties were not confined to any particular work, but he did any work required in the yard, which was used for cutting and dressing blocks of stone weighing from ten to sixteen tons. There was a boom derrick operated by electricity in the center of the yard, and all the blocks of stone in the rough were brought in and deposited near it and left there until it became necessary to move them to other points to be sawed, cut or dressed. The base of the mast of the derrick and the electric controller and levers and drum were inclosed in a small octagonal building, with a door on either side and three windows. The derrick was operated by an engineer who stood within the inclosure. The floor of this octagonal building was four and one-half feet above the ground, and at each door there were three steps leading from the ground into the building. Each door formed one of the octagonal sides of the building, and three of the other sides were solid, and the windows were in- the remaining three. About on a level with the floor, and at the angle of each door and the next octagonal side on the right-hand side of the door as one entered, a piece of timber projected out beyond the angles of the building eleven inches. The other dimensions are not given, but these projections are described as knobs, and at the outer end of each a brace running from it to the boom was fastened. A block of stone weighing about fourteen tons had been brought to the yard and left on the ground, with the end towards the engine house, and quite near to it: The plaintiff and a fellow-employee were directed by the foreman to have this block of stone moved to another place in the yard, and after they had passed a chain around the stone and while plaintiff was engaged in removing some lumber so that the stone would swing clear when hoisted, the derrick revolved a distance of a quarter of a circle and pinned him between the stone and one of these knobs, injuring him severely. The engine house revolved with the arm of the derrick, and made a complete revolution in twenty seconds, and thus from the time it started until it came in contact with the plaintiff only about five seconds elapsed. No signal was given that the derrick would be revolved, and, owing to the other noises in the yard, the plaintiff did not hear it moving. According to the testimony of the plaintiff the custom was, for men desiring to have the derrick swung to a particular place, to give the engineer a signal when they were ready; and the evidence shows that neither the plaintiff nor his fellow-workman signaled the engineer to move it on this occasion, and that the engineer moved it on his own responsibility. The engineer testified that when he saw the chainers, as they are called, preparing to have a stone moved, it was customary for him to swing the arm of the derrick around to move the same without any signal. The construction of the engine house was such that, from the position occupied by the engineer in the performance of his duty, he was unable to see the plaintiff at the time of the accident or to discover that the plaintiff was in a position of danger.

The court submitted the case to the jury upon the theory that it was a question of fact for the jury to determine whether the defendant should have made rules regulating the duties of his employees, or requiring the giving of notice or warning to those exposed to danger of injury from the derrick, and in that connection the court instructed the jury that if the plaintiff knew the danger he was quite as negligent in placing himself in a position of danger as was his employer, but left it to the jury to determine whether the plaintiff knew and appreciated the danger. The jury were further instructed that the engineer was a coservant, and there could be no recovery for any negligence on his part, but that if the engineer and the defendant were both negligent, then there might be a recovery. On -the question of assumption of risk, however, the court instructed the jury, in effect, that no risk is assumed by the servant until the master has performed the duties devolving upon him. The court also, at the request of the attorney for the plaintiff, instructed the jury that “it was an absolute duty on the part of the defendant to furnish the plaintiff with a safe place to work and he cannot delegate that duty; ” and counsel for the defendant duly excepted.

This was the last instruction given by the court. I am of opinion that it was erroneous, as applied to the facts of this case. The place in which the plaintiff was working was constantly changing with the movement of material about the yard. The injury was not owing to the fact that a safe place for the performance of his work was not furnished and maintained by his employer. The doctrine of safe place ordinarily applies only to permanent conditions. It has no application where the place itself is safe, but is rendered unsafe by the negligence of other employees. For instance if a man should he placed at work where another employee in charge of a team may drive a wagon against him, that does not constitute the place an unsafe one within this doctrine. The place here was a stone yard. It did not give way or cave in. No fixed structure or appliance collapsed or toppled over. The men in charge of the work of moving these heavy stones about to he sawed and dressed, could place them where they saw fit. These were details of the work for which the master cannot be held responsible. If the men saw fit to place a large block of stone so near this octagonal building that its projecting angles when revolving would pinion them between the engine house and the stone, or so near that the two projections described would likewise pinion them, those were risks of the business which, at common law, were assumed by the employee. In view of the length of time plaintiff had worked in this yard, under like conditions and of the fact that at times he had operated the derrick himself he was chargeable with knowledge not only that the engine house was there, but that its projections might, when it was revolved, pinch or pinion him, if he placed himself between a block of stone and the revolving derrick sufficiently near, and, therefore, at common law he assumed the risk as matter of law. (Powers v. N. Y., Lake Erie & W. R. R. Co., 98 N. Y. 274; Gibson v. Erie R. Co., 63 id. 449; De Forest v. Jewett, 88 id. 264.) It is not claimed that section 202 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), which changes the common-law rule of assumption of risk and makes it a question of fact for the jury, is applicable to this case, and it is, therefore, unnecessary to express any opinion thereon; but it may he observed that if it were applicable, it would only require the submission of the question to the jury in the first instance, which has been done here, and the verdict might still be set aside as against the weight of evidence on that point, and should be even if the statute were applicable.

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

McLaughlin and Clarke, JJ., concurred; Ingraham, P. J., and Miller, J., concurred on the ground that there was no evidence to justify a finding that the defendant was negligent.

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