
    (72 Hun, 485.)
    GAUL v. ROCHESTER PAPER CO.
    (Supreme Court, General Term, Fifth Department.
    October 20, 1893.)
    Master and Servant—Dangerous Premises—Contributory Negligence.
    In an action for the death of a servant, caused by ice falling from the roof of one of defendant’s buildings and crushing the roof of a lower building in which deceased was at work, it appeared that deceased had been previously injured in a similar accident, but at that time the roof of the lower building was flat, and had since been replaced by a gabled roof, which, though insufficient under the circumstances, was sufficient to sustain any ordinary weight, and was not apparently weak. Two witnesses testified that deceased hadfc expressed fear as to the strength of the new roof. Held, that the question whether deceased was negligent in remaining in the building was for the jury.
    Appeal from circuit court, Monroe county.
    Action by Pauline Gaul, as administratrix of the estate of Albert Gaul, deceased, against the Rochester Paper Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Argued before LEWIS, HAIGHT, and BRADLEY, JJ.
    George F. Yeoman, for appellant.
    P. Chamberlain, Jr., for respondent.
   LEWIS, J.

This action was brought by the plaintiff as administratrix of the estate of her deceased husband, Albert Gaul, to recover damages sustained by his next of kin by his death, caused by the alleged negligence of the defendant. The defendant is a domestic corporation, engaged in the manufacture of paper. Its mills are situate on the bank of the Genesee river, below the city of Rochester, at what are known as the 'Lower Falls.” A part of its plant consists of a three-story building with a gable roof. One end of the building stands in close proximity to the brink of the falls. Between this building and another tall building belonging to another company was a space 24 feet wide. In this space, and between the sides of these buildings, there was a one-story frame building, about 24 feet long, 14 feet wide, and 14 feet high, occupied by the defendant with a number of heavy machines used for grinding wood into pulp. On the morning of the 9th of March, 1892, the deceased was at work in this small building, operating these machines, and while thus employed a large quantity of ice fell from the roof of defendant's three-story building upon the roof of the small building, crushed it in upon the deceased, and caused his death. One side of the roof of the large building sloped towards the .small building. The distance from the eaves of the large building to the roof of the low one was 18 to 20 feet. Large quantities of spray arise from the waters as they fall over the precipice, which drift over upon the roofs of the buildings, and in cold weather freeze, and form coatings of ice thereon. When a thaw comes, the ice is loosened from the roofs, and slides off, and so much of it as is over the roof of the low building falls thereon. This had occurred several times previous to the time Gaul was-killed. Gaul commenced working for the defendant in the small building about 18 months prior to the time of his death. About eight months before his death, ice fell from the taller building onto-the roof of the small one, and crushed it in, and Gaul sustained some slight injuries thereby. The defendant then covered the small, building with a gable roof, and that was the roof which was upon the building at the time of the accident. The former roof was flat. Gaul was at home, recovering from his injuries, at the time the-gable roof was constructed. A particular description of the materials used and the manner of constructing the gable roof was-shown upon the trial. While it was constructed of strong materials, quite sufficient to sustain ®any ordinary weight, the evidence tended to show that it was not properly sustained from below, and was entirely inadequate to sustain the strain that it was well known by the defendant it was liable to be subjected to by the falling of ice from the roof of the larger building. The ice that fell from the high building at the time deceased was killed was from four to six inches in thickness, and that -which fell on the small building weighed from one to two tons. The defendant had occupied these premises for five years prior to the date in question. Its president testified that they had been troubled by the ice falling from the roof of the main building upon the lower building ever-since they first occupied the premises.

There can be no question but that the defendant failed to furnish the deceased with a safe place to do the work it required of him. Counsel for the appellant does not claim to the contrary, but insists-that the danger was so obvious that the deceased was guilty of negligence in consenting to work in the building under the circumstances, and this presents the serious question in the case. The deceased was 26 years of age when he was killed. He had been living in this country but four years. He was operating the mills in this building, and had the opportunity by looking at it to see the manner of its construction; but he was not a carpenter, and was-not shown to have had any knowledge of the construction or strength of the roof, except what he would derive from looking at it. He had a right to assume that the defendant, with its superior-knowledge and information, would build a roof of sufficient strength to protect its employes and property from the falling ice. He had a right to assume that, so far as ordinary diligence could accomplish it, the master would furnish proper structures and appliances-to insure the safety of its employes. Ho especially active duty was imposed upon him to inspect the mechanism of the building with a view of determining the question of its safety. Rigdon v. Lumber Co., (Sup.) 13 N. Y. Supp. 871. John Henselman, an employe of the defendant, who had charge of the pulp grinding and was deceased’s foreman, testified that Gaul conversed with him a short time before the accident about the danger of the ice falling upon the building, and expressed his opinion that it would not stand it if the ice came down upon it, and said that he was afraid ■to stay in it. Another witness testified that Gaul expressed fear ■ about the strength of the roof, but said he thought he was joking when, he spoke of it. Such evidence is not of the most satisfactory •character. Witnesses are quite apt to misunderstand such conversations, and give a wrong construction to them. We think it was for the jury to determine whether the deceased fully understood and comprehended the strength of the new roof, and whether lie had sufficient information and intelligence to realize the danger -of the situation. While he may have had some fears regarding it, It was for the jury to say whether his remaining in the building minder the circumstances was such negligence as to prevent a recovery. The charge of the court to the jury was very full, and the Saw bearing upon the questions was clearly presented to them. Ho • exceptions were taken to the charge. We find nothing in the defendant’s exceptions to the refusal of the court to charge his requests, in view of what had been said in the main charge, calling for a new trial. The judgment and order appealed from should tie affirmed. All concur.  