
    John Borsky, Respondent, v. National Lead Company, Appellant.
    Second Department,
    July 29, 1910.
    Master and servant—negligence —injury by hoisting bucket.
    One employed on a platform to load material on .wheelbarrows after it had been hoisted from, the hold of a vessel by a derrick with a. swinging boom of the usual construction, and who was struck by the hoisting bucket as it was lowered to the platform', cannot recover in a common-law action for the injuries received because his master failed to employ a signalman to give warning, where it appears, that he .had been engaged in the work for over a year, had worked at the particular place two or three days a week during that time, was thoroughly familiar with all the details of the employment, and knew that no signalman was employed.
    Hirschbers, P. J., dissented.
    Appeal by the- defendant, the National Lead Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in tbe office of the clerk of the county of Kings oh the 31st day of December, 1909, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the same day denying tbe defendant’s motion for a new trial made upon tbe minutes.
    
      E. W. Webb [ Carl Schurz Petrasch with him on the brief], for the appellant.
    
      Gilbert D. Steiner, for the respondent.
   Woodward, J.:

The plaintiff was employed with three other men on a platform eighteen and one-half feet above a dock, on defendant’s-premises, on Front street, Brooklyn, in. removing tan bark from buckets into wheelbarrows, The process consisted of the usual derrick, with a swinging boom and a fall, to which iron buckets, holding about eighteen bushels of tan bark were attached when loaded in the hold of á vessel at the dock, and these were raised, by means of a winch, operated by electricity, the machinery being located on the dock. The engineer had control of the winch or revolving drum, and he was so placed that he could watch the work in the vessel, and when the bucket was loaded he would raise the same and a man standing on the deck of the vessel, with a rope attached, guided the bucket to the dumping place on the platform above the dock, where the four men, among them the plaintiff, dumped the same into wheelbarrows and canned it away. In the course of the work of dumping these buckets' into the wheelbarrows, portions of the tan bark would, spill out upon the platform, and it was a part of the plaintiff’s duty to shovel these spillings into his wheelbarrow at intervals. On the S2d of June, 1909, the plaintiff, while engaged in shoveling up the loose tan bark from the platform, was struck by a descending bucket and pushed off the platform and fell upon the dock, sustaining injuries for which he has recovered a verdict against the defendant.

The plaintiff had been engaged in this work for over a year; he had been employed at this point two or three days a week during that time, and his testimony shows clearly that he was thoroughly familiar with all of the details of this simple employment. There was some evidence in the case that neither the man who operated the guy rope nor the man who operated the hoisting machinery could see the plaintiff at the point where he was at work at the moment of the accident, and the defendant’s negligence appears to have been predicated upon the fact that there was no one employed to give signals of the hoisting, or to warn the plaintiff of his danger. The evidence is decidedly weak upon the proposition that the guyman and the winehman could not see the plaintiff; we are of the opinion that it could hardly be held that the plaintiff had sustained the burden of proof in this particular, the evidence tending rather to establish that neither of these men actually did see him at the particular time, rather than that they could not have seen him if they had been operating the machinery with due regard to the safety of a fellow-servant. But however this may be, we are of the opinion that the plaintiff is not entitled, to a recovery under the facts disclosed-by the evidence, and that the-learned court erred in not dismissing the complaint upon the defendant’s motion. The fact that there was not á signalman to give the plaintiff warning-— and this is the only negligence suggested in the evidence — was as well known to the plaintiff as it could have been to the defendant. He had worked there for a year; he had worked there, so far as the evidence discloses, with the same kind of a crew, the same kind. of an equipment, during a period of twelve months or more, during which time he had been performing the same line of services, and he was not lulled into a sense of security by an understanding that he was to be warned of his danger; everything about the situation was open and obvious to any man of ordinary intelligence; he knew that these buckets were coming up every two or three minutes; he knew they were coming up in the same general way that they had come up before, and that they were large and unwieldy, and that they were placed by the combined efforts of the winchman and the guy man. If the men who operated the winch and the guy rope could not see him from their locations, this fact was open and obvious to the plaintiff; lie could not fail to know, with a full year of observation, that these men were so placed that they could not see the platform where, he was at work, and he must, therefore, have assumed the risks of the employment, this action, not being under the Employers’ Liability Act. (See Laws of 1902, chap. 600, as revised in Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200 ét seq.)

The plaintiff urges that the place provided for him for the performance of his labor was not reasonably safe, but the evidence discloses no ground for this contention ; the platform appears to have had a rail erected at all points where it did not interfere with the work, and no .defect, contributing to the accident, is suggested. The platform was in and of itself absolutely safe, so far as this plaintiff is concerned; no defect in the machinery or appliances' is pointed out. Every duty which the master owed in respect to these matters appears to have been fully complied with, and the negligence of the defendant, if there was any, was clearly in the fact that there was no one stationed to give the plaintiff warning of the movements of the buckets, and we have already pointed out hat this was open and obvious to the plaintiff, who continued in the employment, knowing the conditions, for a year without ever having suggested to any one, so far as the evidence discloses, that there was any neglect of the master’s duty in this regard. Beyond this, there was affirmative evidence in the case that the process used by the defendant was the ordinary way of handling this kind of commodities along the docks, and that no one made use of a ■ signalman under such circumstances. We are of the opinion that the experiences of the defendant in operating this hoisting apparatus for a year or more in the presence of the plaintiff, without accident of this kind so far as appears, justified it in continuing the operation on the day of the plaintiff’s injury, and that the latter having continued in the employment knowing that there was no signalman, knowing all of the surroundings as well as the defendant could have known them, it was error to submit the case to the jury.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

Thomas, Rich and Carr, JJ., concurred;- Hirschberg, P. J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  