
    Fred Ambellan, Respondent, v. Barcalo Manufacturing Company, Appellant.
    Fourth Department,
    March 6, 1907.
    Negligence—injury Tby fall of chute — release of action procured by fraud—charge "construed—failure of plaintiff to tender consideration for release not available on appeal.
    A master maintaining a chute used to slide merchandise from one floor to another is bound to so secure it that it will not fall, which duty cannot be delegated so as to relieve the master from liability for inj uries so caused.
    When it is a question as to whether a release.signed by the plaintiff was obtained by misrepresentation of the master and was signed by the plaintiff without knowing its contents, and when the court has charged that if when the plaintiff signed he knew and understood the language of the instrument that he could not recover, a subsequent refusal to charge that if the plaintiff “ knowingly ” executed the release he cannot recover, must be construed to mean that the court refused to charge that the plaintiff could not recover if he knew he signed the paper, that interpretation being necessary in view of the. prior charge..
    Although the effect of such release may not be avoided without repaying or tendering the consideration, the objection cannot be taken for the first time upon appeal.
    Appeal by the defendant, the .Barcalo Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of March, 1906, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 5th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      J. 3. Metcalf ’ for the appellant.
    
      W. 3... Corcoran and 3. J. Swift, for the respondent.
   Williams, J.:

The judgment and order should be affirmed, with eosts.- ' The action was to recover damages for personal injuries alleged to have resulted from the defendant’s "negligence. The injuries were caused by the fall upon plaintiff’s head of the lower part of a chute, used to slide merchandise from the second to the first floor in defendant’s manufactory:" Upon sufficient evidence the jury found this part of the chute was not safely and properly secured, but was left so that it fell upon-plaintiff when he was passing under it in the'performance of his duties as an employee of the defendant."

The question here is whether this negligence -was that of the defendant or of a coemployee. We are of the opinion that the duty of securing the chute so that it would not fall was one imposed upon the defendant, and that it could not be delegated so as to relieve defendant from liability. We have examined the cases cited by the respective counsel. It is,difficult sometimes to say just" where the dividing line is, but we think this case,"under the evidence, is one where the negligence is the defendant’s.'.

After the accident occurred there was a transaction between the plaintiff and the defendant’s superintendent, when eighty-five dollars was paid to the plaintiff and a release taken from him of this cause of action. It was a general release, but covered this claim. The defendant alleged in its answer that it had settled and taken a full release from the plaintiff, and on the' trial gave evidence as to the transaction, the payment and the release,, by the superintendent and two other witnesses! The plaintiff gave evidence as to the matter also, not denying the receipt of the money, or the signing of the release, but .claiming that the transaction was the payment óf seven Weeks’ wages, to enable plaintiff to go away for á rest and to get well, and that he was told the paper signed was merely a receipt for ;the money; His claim was that, there was no talk about a settlement or release, and that lie was deceived as to the contents of the paper he signed by the misrepresentations of the superintendent of the defendant. The court' submitted this question of fact to the jury, read some evidence, and stated the claims of the parties with reference to it, and charged: “If at the time the plaintiff accepted the $85 and signed the release, he knew and understood the language contained in it, he cannot recover in this action. If at the time the plaintiff accepted the $85 and signed the release, he knew and understood that in paying him the money the defendant intended thereby to compromise and settle for any and all claims which he might have against it by reason of his injury upon April 27th, 1903, he cannot recover in this action. If yon find either of those facts in that way, it bars a recovery.” The defendant took no exception to the charge on this subject, but made this request: “ I ask the court to charge the jury if the plaintiff knowingly executed this release, he cannot recover.” The court declined so to charge, and defendant excepted. Evidently the court understood the request to mean that the plaintiff could not recover if he knew he signed the paper, not if he knew the contents of it when he signed it. The request was susceptible of two constructions. It cannot be supposed the court intended here to take back all it had said in detail in the body of the charge. The defendant did not except to the law as stated by the court in the body of the charge, and cannot now be heard to say that it did not fully and explicitly refer to all the elements necessary to invalidate the release. Of course, plaintiff’s understanding of the contents of the paper would not control unless the defendant’s superintendent understood the~ same thing, or unless there was fraud in inducing plaintiff tó sign it. Fraud was claimed in that the superintendent represented it to be a receipt merely, and thus deceived plaintiff as to its contents. If by exception or request this principle had been called to the . attention of the court, the charge would undoubtedly have been made explicit and satisfactory to defendant in' that respect. .It might be suggested that the release could not .be avoided without paying back or tendering to defendant the eighty-five dollars. Mo such suggestion was made during the trial. If it had been, the plaintiff might then have paid the money or made the tender, if this is a case where such payment or tender was required. It is only necessary to hold here that the question not having been raised on the trial, cannot be urged, here as a ground for reversal of the judgment.

The finding of the jury upon this question of settlement and ' release was supported by the evidence, and should not he set aside as contrary to or against the weight of the evidence.

All concurred..

Judgment and order affirmed, with costs;  