
    Myra E. Baker, as Administratrix, etc., of Edward F. Baker, Deceased, Respondent, v. Empire Wire Company, Appellant.
    
      Negligence—death, from stepping upon a defective cleat and falling from a gangway, of one whose duty it was to replace the defective cleat — the absence of handrails does not justify a charge of negligence—assumption of risk.
    
    In an action brought under the Employers’ Liability Act (Laws of 1902, chap. 600) to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the floor of one portion of the defendant’s factory was about three feet lower than that of another portion of such factory, and that in order to enable truck loads of wire to he wheeled from one portion of the factory to another, an inclined gangway had been constructed consisting of three planks, each twelve inches wide and twelve feet long, placed side by side; that the floor of the factory was made more or less slippery by a greasy fluid used in the process of manufacture, and that cleats had been placed upon the middle plank of the gangway to prevent employees from slipping; that there never had been any railing upon either side of the gangway, and that employees, when using such gangway, sometimes walked its entire length, and at other times stepped off or on at the sides.
    There was evidence that while, on the night of the accident, the intestate was helping to push a truck load of wire up the incline, his foot slipped upon a cleat, causing him to fall oil the gangway and to receive injuries from which he died; that the cleats had become worn and slippery, so as not to fully serve the purpose of preventing slipping; that the intestate had been employed in the factory for over three years, during which time the construction of the gangway and the general condition in the shop had remained unchanged; that for a year prior to the accident the intestate had been the night superintendent or foreman thereof, and had full charge thereof at that time; that as such night superintendent and foreman he had the right to, and did, discharge men and to order the repair of machines; that at various times he repaired the inclined gangway itself and renewed the cleats thereon; that in the course of his work he repeatedly passed up and down over the gangway, and that upon the night of the accident he h.id been up and down it several times; that there were on hand in the factory cleats to replace those in use.
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed, for the reasons:
    
      Mrst, that it was the duty of the intestate to replace the cleats upon the gangway if they were worn and defective, and that his failure to do so barred a recovery by the plaintiff;
    
      Second, that it was error for the trial judge to permit the jury to predicate negligence upon the absence of handrails on the gangway; and,
    
      Third, because the verdict of the jury, that the intestate did not understand and assume any tisks incident to the construction and use of the gangway, was against the weight of evidence.
    Appeal by the defendant, the Empire Wire Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 5th day of April, 1904, upon the verdict of a jury for $3,250, and also from an order entered in said clerk’s office on the 3d day of May, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      John D. McMahon, for the appellant.
    
      Howard C. Wiggins and Elijah T. Garlick, for the respondent.
   Hiscock, J.:

Plaintiff’s intestate was employed in defendant’s factory, and upon the night of July 15, 1903, slipped and fell upon some cleats upon a gangway therein, receiving injuries which caused his death. This action was brought under the provisions of the Employers’ Liability Act, so called (Laws of 1902, chap. 600), and amongst other things it was claimed that the defendant was negligent in not placing a railing upon each side of the gangway and also in allowing to become worn and defective cleats which had been placed thereon for the purpose of preventing slipping.

We think that the judgment recovered by plaintiff is affected by at least three errors which necessitate its reversal.

In our opinion it was the duty of the intestate to have replaced the cleats if they had become worn and defective, and his failure so to do bars a recovery by his representative. Secondly, it was error for the trial judge to permit the jury to find negligence because of the absence of handrails upon the gangway, and finally the verdict of the jury that the intestate did not understand and assume any risks incident to the latter’s construction and use was clearly against the weight of evidence.

The floor of a portion of defendant’s factory was about three feet lower than that of another part. It was necessary to move truck loads of wire which defendant was engaged in manufacturing from one portion to the other and a gangway had been constructed for purposes of passageway. This consisted of three planks which were each about twelve inches wide and about twelve feet long, placed side by side leading from one floor to the other. In the process of manufacture there was used a somewhat greasy fluid called “ dip,” and to some extent this became spattered and tracked over the floor, making it more or less slippery. The loads of wire which were moved upon trucks from one portion of the factory to another over the gangway were quite heavy, and cleats had been put upon the middle plank to prevent the slipping of employees as they drew them up the incline. There never had been any railing upon either side of the gangway, and in the constant use of the latter employees sometimes walked its entire length and at others stepped off and on at the side.

At the time of the accident, as the jury were fairly permitted to find, the intestate was helping to push a truck load of wire up the incline when his foot slipped upon a cleat and he fell off upon the side, receiving the injuries resulting in his death. It was also permissible for the jury to find that these cleats had become worn and slippery so as not fully to serve the purpose of preventing slipping.

The intestate had been continuously employed in the defendant’s factory from the spring of 1900 to the time of the accident, and from July 21, 1902, had been the night superintendent or foreman of the factory, having full' charge thereof at that time. As such he had the right to, and did, hire and discharge men and order the repair and fixing of machines. At various times he had repaired the incline itself and renewed the cleats thereon. In the course of his work he repeatedly passed up and down over this gangway, and upon the evening in question before the accident had been up and down several times. There were on hand in the factory cleats with which if necessary or proper to replace those in use. While other employees had occasionally slipped upon the gangway, it does not appear that this accident had been in any manner caused or aggravated by the absence of handrails. The construction of the gangway and the general conditions in the shop remained without change from before the date of intestate’s employment to the time of the accident.

Upon these general facts we are led to sustain appellant’s assignment of errors in the respects already stated.

The testimony leaves no doubt that the plaintiff’s intestate as night superintendent or foreman was invested with and exercised general superintendence and authority ^ver defendant’s shop, and that his powers and duties included the maintenance in a proper degree of repair and efficiency of the various machines and appliances therein used. His appreciation of these powers with respect to this gangway is evidenced by what he had previously done in the way of replacing the cleats thereon. While it is true that he had sometimes done this while at work in the daytime when another superintendent was in charge, the entire evidence fully demonstrates that he was charged with the power and duty of doing this at night while he was superintendent if it became necessary. ‘And of course there can be no doubt that he had full opportunity to observe and know their condition and appreciate the necessity for replacing them if it existed. We, therefore, have it that if the gangway was in a defective condition at the time of the accident it .was because intestate had failed to discharge the powers which had been delegated to him by his employer, and if the defendant was negligent in allowing the cleats to remain after they were worn and defective, the immediate cause of this negligence was the failure of the intestate •himself to perform his duty. It needs no citation of authorities to sustain the proposition that the plaintiff may not recover, from defendant for a negligent condition which was permitted and not remedied by her intestate in violation of his duty..

The trial judge charged : That if the jury find that the accident was caused by any defect in the incline or runway which arose from, or had not been discovered or remedied owing to, the negligence of a person in the service of the defendant and entrusted by the defendant with the duty of seeing that the ways and works of the defendant were in proper condition, the person so entrusted by the defendant on the night and at the time of the accident was the plaintiff’s intestate, and the verdict must he for the defendant’’

It is difficult to regard the absence of railings as a proximate cause of the accident. Upon plaintiff’s theory the slipping and falling of her intestate was due to the slippery and defective condition of the cleats. And the most that can be said of the proposed railing is that it might have prevented the intestate from falling over the side of the gangway. If, however, we do assume that the absence of the railing did in a legal sense cause or contribute to the accident, we believe that in the exercise of ordinary care and prudence the defendant was not liable for not having placed one there. The structure was a very simple one, at its highest point only three feet from the floor. A railing high enough to be of any service would have been an obstruction in defendant’s shop and in the use made by its employees of the gangway itself. It does not appear that in the course of years and under constant usage any accident had resulted from the lack of a railing. Defendant was only bound to anticipate natural results and exercise ordinary care. Within these limits at least it was not under any obligation to change for the benefit of the intestate the form of its gangway which was in existence when the latter entered its employ, and we think that the trial judge allowed the jury to impose too onerous a responsibility and liability upon the defendant in permitting them to find that it was negligent in this respect.

It was strenuously insisted in behalf of the defendant upon the trial as it is upon this appeal that plaintiffs intestate as matter of law fully understood and assumed any risks incident to the construction and condition of the gangway. The trial justice, however, held that under the Employers’ Liability Act the question whether the employee did so understand, appreciate and assume these risks was one of fact for the jury. The act does provide for the submission to the jury in an action for personal injuries of the question of assumption of risk. It further provides, however, that the verdict of the tjury upon such a question shall as in other cases be subject to review upon the facts and that it may be set aside as against the weight of evidence. The verdict in this case upon that point was and is against the weight of evidence. The gangway involved was an appliance of the most simple character. Any person of ordinary intelligence could appreciate that when cleats became rounded and worn they would not offer the same resistance to slipping as when new and square. The intestate was constantly up and down over this passageway for a period of months. His position charged him with the duty of observing the conditions which existed, and it is impossible that he should not have appreciated fully all of the risks of slipping which were incident to the conditions as they existed upon the night of the accident. We have no doubt that prior to the passage of the act in question it would have been the duty of the trial court to dismiss plaintiff’s complaint as matter of law (Marsh v. Chickering, 101 N. Y. 396), and giving to the statute invoked by plaintiff the full scope and meaning claimed by her, it was against the weight of evidence for the jury to render a verdict in her favor upon this point.

The judgment and order should be reversed upon the law and facts.

All concurred. '

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law and of fact.  