
    Skaarup v. Stover.
    
      (Supreme Court, General Term, Third Department
    
    February 24, 1890.)
    Negligence—Province of Jury—Nonsuit.
    Plaintiff’s son, a boy 14 years old, was hired by defendant, and put to work sawing logs, under defendant’s directions, with another boy, 15 years old. The log, which weighed about 3,500 pounds, was placed with its middle on a projecting stump, standing on a steep hillside. Plaintiff’s son was placed on the hill above the log, and directed to stay there; but after a time he changed places with the other boy, who was below the log. When the log was sawed through, the two pieces rolled down the bill over plaintiff’s son, and killed him. Defendant was near enough to see or hear the log roll. Held, in an action to recover for the death of deceased, that whether defendant was guilty of negligence, and deceased of contributory negligence, were questions for the jury, and that it was error to order a nonsuit.
    Appeal from circuit court, Bensselaer county.
    Action by John Skaarup, as administrator of Lawrence Skaarup, against Charles Stover, to recover damages for the death of plaintiff’s intestate, caused by the alleged negligence of defendant. Plaintiff appeals from a judgment dismissing his complaint entered upon a nonsuit.
    
      Argued before Learned, P. J., and Landon and Mayhabi, JJ.
    
      Davenport & Hollister, (Nelson Davenport, of counsel,) for appellant. Merritt & Ryan, (Henry A. Merritt, of counsel,) for respondent.
   Learned, P. J.

The deceased, a son of plaintiff, 14 years old, was hired by the defendant to do work on defendant’s farm for board and clothing. Defendant, with the deceased and another boy, named Bivenburgh, 15 years old, went out to a lot to have them saw logs under defendant’s direction. The boys were set at this work by defendant, and they sawed one log. Then defendant and the boys arranged another log for sawing. This second log was about 32 feet long and 6 feet around. It was placed so that, it would seem, the middle, or about the middle, of the log, rested on a stump. The place was a hillside, and the declivity was about 33 feet in 100. The log was placed with its side to the hill. The boys were stationed one on each side of the log, and were to saw the log in the usual manner, with a cross-cut saw. The log was steadied upon the stump by a stick. The object of placing the log on the stump appears to have been to prevent the log from binding the saw as the work progressed. The deceased was placed on the hill above the log,—Bivenburgh below; and defendant told the deceased to stay there. Defendant went away, but, apparently, not very far. The boys worked half an hour, and then changed places. When they had sown through the log, the two parts fell on the side of the hill below the stump. The butt log began to roll down hill, and the other part soon followed. The deceased ran to get out of the way of the logs; but his foot was caught after he had run about 24 feet, and the log rolled over him, and killed him. It weighed about 3,500 pounds. The defendant was near enough to see the accident; for when the logs began to roll he called to the deceased: “Lookout, bub!” The learned justice nonsuited the plaintiff on the ground that the deceased disobeyed the defendant’s direction in going from the position above the log to that below, and that this disobedience contributed to the death of deceased. The plaintiff claims that the defendant was negligent in placing the log so that the parts would certainly roll down the hill when sown apart, and and in not putting some block or obstacle to prevent this accident when putting inexperienced boys at such dangerous work, and in not warning them of the danger.

In considering what effect is to be given to the defendant’s instruction when he placed the deceased above the log, we must consider the circumstances. Here were two boys nearly of the same age, and, so far as appears, of equal experience. In this mode of sawing, it is necessary that one should be on each side. Where the ground on one side is higher than on the other, different positions of the body may be required on the different sides. The deceased sat on his overcoat when working on the upper side; and, naturally, after working for a time, it would be a relief to each boy to change to the other side, so as to take a new position of the body. If one side was dangerous, and the other was not, there was not such a difference in the size of the boys that one could be safely exposed to the danger, and the other could not. We can hardly suppose that the defendant placed the deceased on the upper side of the log in order to give him a safe position, when we see that at the same time he placed the Bivenburgh boy on the lower side, in a place of danger. This would be to impute to him a disregard of the safety of the Bivenburgh boy. How, when defendant placed the boy at this work, if, as might be found by the jury, there was a dangerous place connected with the work, the boy should have been informed of, and able to appreciate, the danger, before the defendant could be held to have performed his whole duty. Hickey v. Taaffe, 105 N. Y. 36, 12 N. E. Rep. 286. There is no evidence that the danger of the situation was explained to these boys, or to either of them, or that any caution was given to them. If the boys had not changed places, then it is quite probable that Bivenburgh would have been killed in the same way. At least, he would have been put in imminent peril. For, owing to the length of the sown logs, it was difficult to escape sideways, and in running down the hill there was the risk of the result which befell the deceased. It seems, therefore, to us, that it was a question for the jury whether the defendant discharged his duty to the deceased, unless it can be said, as a matter of law, that the deceased ought to have understood that he was not to go to the lower side of the log, and that to do so exposed him to danger. The mere direction to work on the upper side, and to stay there, gave no warning of any danger on the lower side. The placing of Kivenburgh on the lower side showed to deceased that the defendant did not consider that side dangerous. Indeed, the defendant said afterwards that, if he had thought of it, he would have blocked the logs so that they could not roll, but that he did not think of it. This shows, as is otherwise apparent, that in placing deceased on the upper side, and telling him to stay there, the defendant was not taking care of the safety of the deceased. He was only arranging the two boys at the work in the position which seemed most convenient to them, and therefore most profitable to him. It, therefore, might well be found by the jury that, under the circumstances, all which the defendant said and did did not amount to a sufficient direction and caution, and that the deceased could not have understood that the boys were prohibited from changing places. Continued work in one position becomes fatiguing, especially to boys, and probably neither of them supposed that a change of position would be an act of disobedience. Although defendant did not come back to the place before the accident, yet he was near-enough to see or hear the log begin to roll; for he called out to deceased, “Look out, bub!” when he had gone four or five feet.

The questions, after all, are whether defendant was guilty of negligence, and whether the deceased was guilty of contributory negligence; and the fact that the deceased went to the lower side is material as bearing on this latter question, and perhaps on the former. We think that his act was not conclusive on that question; for, if a master puts a servant at work near a dangerous place, it may not be sufficient care on the master’s part to put the servant on a spot which is out of danger, and simply tell him to stay there, without warning him of the peril of going to the dangerous place. And it may not always be negligence for the servant to change his position, especially when circumstances show that the place to which he goes is not considered dangerous by the master; and, though a servant should disobey his master’s orders such disobedience is not punishable with death. Nor is disobedience to the, master’s commands necessarily contributory negligence, when injury results to the servant. Negligence implies something more,—a disregard of proper care of one’s safety. It is contributory negligence, not a contributory act, which defeats a recovery. The judgment should be reversed, and a new trial granted; costs to abide event. All concur.  