
    Henry B. Dorney, Appellant, v. Hugh O’Neill, Respondent.
    
      Negligence — injury to an employee’s eye by Ms coming in contact with rubbish while-passing through a damh hallway.
    
    Where the rules established by an employer prohibit his employees from, bringing matches into the building and require them to remain at their posts until the dismissal bell rings, a person employed in the building a few weeks, who, as a result of the extinguishing of the lights according to usage by the person having charge thereof, at or before the ringing of the dismissal bell, was obliged, when leaving the building, to grope his way through a dark hallway, in doing which his eye was destroyed by a twig protruding from one of several “wheelers” filled with rubbish and stored in the hallway, cannot be said, as a matter of law, to have assumed the risk incident to the presence of the “ wheelers ” in the hallway, where it appears that although he had occasionally seen “ wheelers ” in some of the passageways, he ha'd never seen them in the hallway at the place where he was injured, and had no knowledge or notice that rubbish was ever placed in the “ wheelers ” in any of the hallways or passages; neither can it be said, as a matter of law, that the master performed his duty to furnish the employee with reasonably safe means of - egress from the premises.
    Appeal by the plaintiff, Henry B. Dorney, from a judgment of' the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of Hay, 1899, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of. the court after a trial before the court and a jury at the New York Trial Term, and also from an order entered in said clerk’s office on the.6tli day of June, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    This appeal was transferred from the first department to the second department.
    
      Charles Steckler [Levin L. Brown with him on the brief], fertile appellant.
    
      Eugene Lamb Richards, Jr., for the respondent.
   Hirschberg, J.:

On the first trial of this action the plaintiff recovered a verdict, but the judgment entered on it was reversed by the Appellate Division in the first department. (Dorney v. O'Neill, 34 App. Div. 497.) On the retrial the complaint was dismissed by the learned trial justice at the close of the plaintiff’s case, the court saying: “I have carefully considered the record in the case before, and, in applying the rule laid down for the guidance of the court rendered in the Appellate Division in the last appeal, I would not he warranted in submitting this case to a jury, and I grant the motion to dismiss the complaint.” The correctness of this ruling is presented for review on the present appeal.

It would seem from the opinion delivered on the former appeal,, and the record of the second trial, that the facts were not accurately elicited on the occasion of the first trial. As first made up the record evidently presented two grounds of alleged negligence on the part of the defendant: (1) In storing “ wheelers ” in the passageway through which the plaintiff was obliged to walk at night when leaving the defendant’s premises, and (2) in not having the passageway sufficiently lighted. It then appeared that the plaintiff had been in defendant’s employ for two years before the accident, during all which time these “ wheelers,” i. e., baskets on wheels, used to cart goods about the building, had been stored in the passageway, to-plaintiff’s knowledge, and that on the night in question adequate lights, with which the passageway was furnished, suddenly, and for the first time, went out, for some unexplained reason, leaving the-plaintiff in darkness and causing him serious injury by coming in contact with one of the wheelers.” As to the extinguishment of" the lights the record then presented no facts on which defendant’s negligence could be predicated; while the risk of contact with the wheelers ” was one which the plaintiff clearly assumed by continuing in defendant’s service with apparent knowledge that they were customarily stored at the place where he received his injury.

On the second trial, a fuller and more accurate disclosure of the facts presents the accident in an entirely different aspect, and requires a submission of the case to the jury. The employment of the plaintiff by the defendant for the period of two years was a separate employment from the one under which he was serving at the time of the accident, and was before the building was constructed in which the accident occurred. He had only been working a few weeks under the second employment when he was injured, and it appeared without dispute that he was not injured by contact with. the “ wheelers,” but with certain debris with which they were loaded at night before being stored in the passageways. This debris consisted of rubbish, boards, paper, sharp twigs used in the packing and binding of crockery, and other material of a like character, which the porters -would collect toward the close of day before the ■employees of plaintiff’s class left the building at night, and which would be removed before they returned to work in the morning This material extended above and a foot beyond the “ wheelers,” ■and, while the plaintiff was groping his way through the dark hallway on the night in question, a sharp twig, protruding from one of .the “wheelers,” was driven into and destroyed his left eye. It further appeared, without contradiction, that while the plaintiff had ■seen the “ wheelers ” in use in the building, and occasionally in some ■of the passageways which he was obliged to traverse in going to and from his work, he had never seen them in the hallway at the place where he was hurt, and had neither knowledge nor any information which could suggest inquiry which might lead to knowledge, that debris or other obstructions were ever placed in the “ wheelers ” in any of the hallways or passages. The rules of the establishment were read in evidence, from which it appears that the bringing of matches into the building by employees was prohibited under pain ■of dismissal. The rules further required employees to remain in their respective places until the bell rings for dismissal, and it was .satisfactorily established that each night during all the 'time plaintiff was employed, one of the defendant’s employees named Rohlfs, to whom that duty was apparently delegated, turned out the lights ■either at the time of or shortly before the ringing of the dismissal bell, so that the plaintiff, on every occasion, was obliged to pass through the hallway in question in darkness.

The duty of the master is not only to furnish his employee with a reasonably safe place to work in, and reasonably safe access and ■egress to and from the premises, but also, “ having control of the times, places and conditions under which the servant is required to labor, to guard him against probable danger in all. cases in which .that may be done by the exercise of reasonable caution.” (McGovern v. C. V. R. R. Co., 123 N. Y. 280, 287.) It cannot be said as matter of law that this duty has been discharged by furnishing a hallway through which the servant must pass at night and in the dark, and in which the master has caused to be placed material of such a character that involuntary contact may cause injuries as serious as that which the plaintiff has sustained. Nor can it be said that the servant, under the circumstances now presented by the record, assumes, as matter of law, the risk incident .to the existence of such a hidden menace. Even if he may be held to have assumed the risk of passing through the hall in the dark, so far as darkness may involve risk in view of the condition of the hallway, as known to him, yet he cannot be held to have assumed the risk of other dangers not disclosed, and of which there was nothing in the nature either of his employment or his surroundings to give him warning.

The judgment and order should be reversed and a new trial granted.

All concurred.

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