
    Jay Anthony, Resp’t, v. Joseph Leeret et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 7, 1887.)
    
    1. Master and Servant—Negligence of fellow servant.
    Défondants were manufacturers of wooden boxes, with the saws and cutting machines on the second floor, the lumber after it had been planed in the room below being passed to the upper room through a trap door in the floor, and piled on either side, leaving an alley-way, leading over the trap, through which the workmen had to pass. Plaintiff, who was in their employ, was injured by the sudden opening of the trap from below by a fellow workmen, although this was contrary to instructions given by defendants to the workmen in the lower story. Held, that defendants, were not liable, as the immediate cause of the injury was the negligence of a co-servant.
    2. Same.
    The location of the trap-door in the passage-way was not per se a wrongful act. The defendants had a right to arrange their own premises in any way which suited their convenience, and were not bound to change the arrangement to secure greater safety to the employees.
    Appeal from judgment of supreme court, general term, fourth department.
    
      I. K. Fuller, for app’lts; M. M. Waters, for resp’t.
    
      
       Reversing 35 Hun, 663, mem.
      
    
   Andrews, J.

The plaintiff, by the lamentable accident which is the subject of this action, has sustained a most severe and probably permanent injury. The question which we are to determine respects the liability of the defendants, on whose premises it happened, and between whom and the plaintiff existed at the time the relation of master and servant. The basis of the claim to charge the defendants with the consequences of the accident is negligence. The jury have found, upon this issue, in favor of the plaintiff. We are called upon to determine whether the evidence supports a recovery and justifies the judgment rendered.

The defendants were engaged in the manufacture of boxes and other articles from wood, and for the purposes of their business occupied a building of two stories, in which the various processes of dressing rough lumber, cutting it into suitable lengths and forms, and manufacturing the same into boxes and other articles, were conducted. The planing machines were on the first floor, and the men employed in this department were in charge of a foreman. The saws and cutting machines were on the second floor, over the planers, and the lumber, after it had been planed in the room below, was passed up by men employed in that room to the upper room through a trap-door in the floor of the second story, and there piled on either side the space between the trap-door and the north and south walls of the building, leaving a space or alley-way between the ends of the piles. The cutting machines were near the north wall, and the planed lumber was taken from the piles to the cutting machines, and cut into the lengths and forms required. The west side of the second story was used as the nailing room, in which workmen were employed in putting together pieces obtained from the cutting room, and making them into boxes. Each nailer procured the pieces he needed for his particular work, by passing from the nailing room through a door in the partition dividing the nailing room from the cutting room, and thence, through the passage-way made by the two piles of lumber, to the cutting machine, where they selected an armful of pieces, and took them by the same passage-way to the nailing room. The trap-door was in the passage-way. It was constructed of two thicknesses of boards, with cleats, was quite heavy, weighing as stated by one witness, fifty pounds, and swung to the north, and in this door on the top_ was a staple and ring for raising it from above. The opening in the floor was about three feet square. The trap-door was firm and solid, and it is not claimed that it was out of repair, or was in any way defective.

The plaintiff was a nailer in the box room, and had been engaged in this business in this place for twenty-two months prior to the accident. On the occasion of the injury he was returning from the cutting room, through the passage-way, to the nailing room, carrying in his arms a large load of pieces, and was in the act of stepping upon the trap-door when it was suddenly and without notice thrown open from below, and he fell with his load to the lower floor, sustaining the injuries complained of. The trap door was placed in the floor seven or eight years before the accident, it was conveniently located for the purpose designed, and was placed there to avoid the necessity of carrying the planed lumber to the second story by the stairways on the outside of the building. It was shown that, about two years prior to the accident in question, a boy fell through the opening, but fortunately he was not injured. It does not appear how the door came to be open on that occasion. This incident, however, led to instructions being given to the workmen that the door should never be opened from below. Before this, the men in the planing room would sometimes open the door by pushing against it from the underside with a board, although it was difficult to do this by reason of the height of the floor and weight of the door. But, after the boy fell through; the men employed in thé planing room were instructed not to open the door from below, but to rap on the door when they desired to have it opened, and wait till some one opened it from above, or to send a person from below to open. it. The general uniformity of the practice thus enjoined is apparent from the plaintiff’s own statement that, during the whole twenty-two months of his employment, he had never known the door to be opened from below except on the very occasion of the accident in question. On this occasion the door was thrust ■open by one Schmidt, a workman in the planing room, who, four or five days before, had entered the service of the defendants, and had been set to work in the planing department. He testifies that he had been instructed by the foreman, when he desired to have the door opened, “to shake the door, and wait until somebody came to open it; ” that on this occasion he wanted to send lumber up stairs, and rattled the door, and then stopped, and the witness continues: “ I don’t know how long, and then I pushed it up because they did not come quick enough upstairs. I did not like to wait so long. It was not an easy matter to push it open. It would take a man to throw that door open; it was ■a heavy door. I took a piece of board and put the end of it against the door, and then I gave two or three raps with the board and waited a little while, and there didn’t any one come. Then I gave a little hitch, and then another, and then over it went.”

The evidence is undisputed that the plaintiff was fully informed as to the location and use of the trap door, and the manner of its construction. He testifies that he had passed over it hundreds of times. In respect to the care taken by himself, he says: “I used to think about the trapdoor a good deal. I don’t think I thought any more about it than I had for a long time. I was always pretty careful about the trap-door, and always watched it.” As bearing upon the knowledge of the defendants of the dangerous location of the trap-door, it was shown that, when it was constructed, they were warned against placing it in the passageway, and that they knew of the incident of the boy falling through the opening at the time it happened.

Upon the facts disclosed in the evidence, of which the foregoing statement is a summary, we are unable to perceive any ground upon which the defendants can be held liable. The immediate cause of the injury was the negligence of a co-servant. If Schmidt had obeyed the instructions of the foremen the accident would not have happened. He was a person of mature years, and it is not claimed that he was deficient in capacity or intelligence, or that he did not comprehend the situation and understand the instructions given him. His own account of his conduct shows that he violated his instructions from his impatience, because there was not a prompt response by persons above to his signal for opening the door. His disregard of instructions, designed for the safety of persons using the passageway, was the fault which immediately caused the accident. The general rule, that a master is not liable to a servant for an injury occasioned by the negligence of a co-servant, is admitted by the learned counsel for the plaintiff; and, indeed, the general doctrine upon the subject is so well settled that it admits of no argument. But it is claimed that the negligence of the defendants co-operated with that of Schmidt m producing the injury. If this claim is well founded, the plaintiff is entitled to recover because for a wrong or injury occasioned by the joint or co-operative agency of two or more persons all the tort-feasors are separately and jointly liable; and there is no implied contract growing out of the contract of service that the servant shall take the risk of the master’s negligence, or that the latter shall be exempt from responsibility to the servant for his own personal wrongs. The negligence of the defendants, if any exists, must be found either (1) in the location of the trap-door in the passageway; or (2) in failing adequately to protect or guard it. It is a complete answer to the claim of negligence in these respects that the plaintiff had full knowledge of the situation and of the arrangements for the protection of persons using the passageway; and that, by continuing in the employment, he assumed the risks and hazards incident to the situation, and especially such hazards as might result from the non-observance by co-employees of directions designed for the protection of persons using the passageway. The dangers to which the plaintiff was exposed were known and obvious. It is not the case where an inexperienced or uninstructed employee may know the facts, but may be incapable of drawing the proper in-fen, nces or appreciating the dangers. The plaintiff was as fully competent to understand the risks from the location of the trap-door and its use, and from negligent conduct of persons employed in the planing-room, as were the defendants. The location of the trap-door in the passageway was not per se a wrongful act. The defendants had a right to arrange their own premises in any way which suited their convenience, and were not bound to change the arrangement to secure greater safety to the employes. If the trapdoor was not open to observation, or its existence was not known to those whose duty required them to use the passageway, or if the defendants had omitted to give proper instructions to those employed in the planing-room, a different question would be presented. The general rule that, the servant takes the risk of obvious dangers connected with his employment, has been so fully considered in recent cases that further discussion is unnecessary. Gibson v. Erie Ry. Co., 63 N. Y., 449; De Forest v. Jewett, 88 id., 264; Sweeney v. Envelope Co., 101 id., 520.

We are of opinion that the application of settled principles to the circumstances of this case requires a reversal of the judgment.

Judgment reversed and new trial granted.

All concur.  