
    Frank Kueckel, Plaintiff, v. Patrick O’Connor et al., Defendants.
    (Supreme Court, New York" Special Term,
    November, 1901.)
    Contributory negligence — Reckless exposure to danger.
    A carpenter, employed to lay a floor in a room, directly under and not much larger than the hatchways of a five-story building, who, after complaining to the janitor that the place was dangerous for work because of hoisting in progress by the defendants, and after being told by one of them that it was dangerous and responding thrt he was insured, worked there after closing the thin trap door of the lowest hatchway, cannot recover damages for personal injuries which he subsequently received, while sawing a board in the room, from heavy bundles of paper which at the fifth floor slipped out of a sling while being hoisted up the hatchways and fell down upon him after breaking through the trap door — and particularly where it was not necessary that he should saw the board in the room and a safer place-was available to him.
    Action for damages for negligence. Motion to direct a verdict for the defendants made after the close of the evidence on both sides, and reserved until after verdict. Verdict for the plaintiff.
    Edward P. Lyon for plaintiff.
    Robert Thorne for defendants.
   Gaynor, J.:

The defendants were hoisting bundles of paper from the first to the fifth loft of the building. They were doing the work for a tenant, of the building. Each bundle weighed about 250 pounds according to plaintiff’s evidence, and. certainly 100 pounds or more. The hoisting was being done by means of a simple block and fall worked by hand. Several bundles were carried up in the sling at each hoist. The job would take two or three days. The plaintiff was engaged by the janitor of the building to lay a floor in a room 8 feet square directly under such hatchways, which were 6 feet square. When he came to do the work he found the hoisting going on either when he commenced or very soon thereafter the same morning. He went to the janitor .and told him it was dangerous for him to work under the hatches while the hoisting was going on. He says the janitor told him to go ahead. The janitor says he told him not to work until the hoisting was finished, unless at his own risk. One of the defendants told the plaintiff that it was dangerous for him to work there, and the plaintiff responded that he was insured. The plaintiff admitted this. He closed down the flap of trap door which covered the hatch of the first loft, but saw, as he himself testified, that it was flimsy, only seven-eighths of an inch thick, and no protection if the bundles should fall. It was not intended for that purpose.

An hour or two afterwards, while the plaintiff was sawing a board directly under the hatches, the bundles in some way slipped out of the sling as they weré being landed on the fifth loft, and crashing down through the said closed flap or trap door fell upon the plaintiff.

A verdict must be directed for the defendants. Ho one could fail to see and understand the danger. It was obvious to the plaintiff and he therefore took the risk of it. Moreover, his act of sawing the board under the hatches was unnecessary. If he •continued the work while the hoisting was going on he could have taken his measurements (at intervals, if necessary) without getting under the loads as they were being hoisted, and then done his sawing in a safe place. And he could then have laid the boards and nailed them with the same caution. Such conduct might have brought him within the case of Hoes v. Edison General Electric Co. (161 N. Y. 35). Instead his conduct lacked any care whatever. It was reckless.

The verdict is set aside and a verdict ia entered for the defendants.  