
    John Burke, Respondent, v. The Manhattan Railway Company, Appellant.
    First Department,
    December, 1905.
    Negligence — injury by heavy truck— defective flooring — failure to provide Safe place to work — proximate cause of injury.
    The plaintiff, during the first day of his employment by the'defendant,'was ordered by defendant’s foreman to assist othér employees in mo.ving a heavy truck weighing nine or ten tons. The plaintiff was pulling the truck from the , front, walking backwards, while others were pushing at the back and sides. Plaintiff’s foot caught in a hole three or four inches wide and several feet long in the flooring of the elevated track. Being Unable to extricate himself, the truck passed over his foot and crushed it before its motion could be stopped. It was shown that it was customary for those pulling such trucks to use a rope and that in the present instance the plaintiff had been ordered to ' pull the truck without such, rope attached.
    
      Held, that owing to the hole in the floor, which had existed for some time, the. • jury were warranted in finding that the defendant, was negligent in not providing a safe place for plaintiff to work;
    That, as plaintiff did not know- of the hole and was properly engaged in dis- . charging his duty, his contributory negligence was a question for the jury and that a verdict in his favor should not be disturbed; ■
    That the in the .floor was not a risk which plaintiff assumed;
    •That said hole was the proximate cause of the injury and not the failure to use the rope provided for that purpose.
    Ingbaham, J., dissented.
    Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of January, 1905, upon the verdict of a jury for $'4,000, and also from an order entered in said clerk’s office on the 23d day of January, 1905, denying the defendant’s motion for a new trial made upon the minutes. ,
    
      John F. McIntyre, for the appellant.
    
      Lyman A. Spalding, for the respondent.
   Houghton, J.:

This is an action by- an employee for the loss of a foot, crushed under the wheel of a motor truck used for transporting cars, being moved by hand from its shed to the main track, at the defendant’s Lexington avenue yard.

The accident happened the first morning of plaintiff’s employment. During the first hour or so of the forenoon, he had been engaged, with others, in moving trucks at what is called the west yard, under direction of a foreman.-

The usual mode of moving these trucks, which weighed nine or ten tons, was to attach a rope about thirty feet long, by which some of the men pulled, others pushing behind. The foreman moved the gang to the east yard without taking the. rope, and plaintiff was sent back to bring it, which he did.

The plaintiff testifies, and he is corroborated by other witnesses, that the foreman directed the men to open the door of the shed and, haul out a truck without directing that the rope be attached. This the men proceeded to do, some pushing at the rear and the sides, and the plaintiff and another pulling at the front, walking backwards. When the car had been moved twenty or thirty feet from the shed, plaintiff’s left foot caught in a hole in the floor of the yard, which is twenty-five or thirty feet above the ground, its floor being composed of slats ordinarily about half an inch apart. He was unable to extricate it, and was thrown down by the movement of the truck, and before it could be stopped a wheel passed over his right foot, crushing it so that amputation was necessary. There was evidence sufficient to justify the jury in finding that the hole in which plaintiff stepped and in which his foot was wedged so as to tear the sole from his shoe, was three or four inches wide and several feet in length, and had existed for some time; and they, therefore, had the right to say that the defendant was negligent in not providing the plaintiff with a reasonably safe place in which to work.

•A floor to the structure having been provided upon which employees were expected to pass to and fro in the prosecution of their work,, it Was incumbent upon the defendant to make it reasonably safe, and keep it free from such defects as might reasonably be expected to produce injury. The yard, was filled with tracks upon which cars .were expected to be moved, and One of the defects which defendant was bound to guard against was holes in the floor in which employees might be caught, and thus be put in peril of a moving car, or through which they might fall to the ground below.

The plaintiff did not know of the hole, and if he was engaged in the proper discharge of. his duties in pulling on the truck in front without the rope, walking backwards as. he. was, his contributory negligence was for. the. jury, and their conclusion, in his favor should not be disturbed. \

It is urged, however, that the plaintiff assumed the risk of injury . by pulling on the car without the rope. This, in a sense, is true. He assumed the risk of slipping or stumbling from any ordinary cause, or from any awkward or feeble movements On his part which might cause him' to fall. He did not, however, assume the risk of a defective flooring in' which his foot might be caught and held, and of which he had no knowledge either by warning or from observation.

The situation here is quite different from that presented in Sheehan v. Standard Gas Light Co. (87 App. Div. 174), upon which appellant relies. In that case the defendant had provided its employees with a perfectly safe place and appliance, which became dangerous only from the manner in which the employee used it. . ■

The defendant’s foreman testified that he warned plaintiff against pulling in front of the car without the rope, but plaintiff denied this, and testified that the foreman directed all of.the men to - pull out the car without the rope being attached. The- plaintiff had no knowledge that therewas any likelihood of his stepping into a hole and catching his foot so that he could not get out of the way of the slow-moving truck, and hence it became a question of fact for -the jury to determine whether or not he was guilty of contributory neg-ligence. in obeying the direction's of his- superior. (Hawley v. Northern Central Railway Co., 82 N. Y. 370; Griffin v. Ithaca Street R. Co., 62 App. Div. 551; Leland v. Hearn, 49 id. 111.)

But it is said that the hole was not the proximate cause of the injury, but rather the failure to use the rope, and that the master having provided a rope for use, the omission of the superintendent to direct it to be used was the negligence of a coservant, and hence that, as matter of law, plaintiff was guilty of negligence in attempting to haul the truck as he did before the rope had been attached.

The case of Vogel v. American Bridge Co. (180 N. Y. 373) is relied upon for this position. We think it does not apply. There the master provided a sufficient supply of rope suitable for the work. The foreman determined that a defective rope was strong enough. It was held that .the master was not liable for this error in judgment of its foreman since there had been no neglect in the selection of a competent foreman, and in making reasonable provision for safe execution of the work, because the risk of injury from an error of judgment of the foreman was one of those assumed by the employee as incidental to the execution of the work in its details.

The difficulty in applying this rule to the present case is the hole in the floor in which plaintiff caught his foot. That hole was not an incident to or a detail in the performance of the work in which the plaintiff was engaged. If there had been a good and bad rope, and the defendant’s foreman had selected the bad one instead of the good, and the plaintiff had fallen in front of the truck from the breaking of the rope, the rule would apply. Here the proximate cause was the existence of the hole. It is mere speculation to say that if the rope had been attached and the plaintiff had caught his foot as he did it is likely the truck could have been stopped before it reached him, because he would have been further away from it when he fell. It is very possible that this is so; but this does not make the failure to use the rope the proximate cause of the accident.

In summarizing the general doctrines with respect to proximate and remote cause, Thompson, in his Commentaries on Negligence (Vol. 1 [2d ed.], § 56), says: “ The true course of reasoning is to consider whether the negligence of the defendant was the efficient cause of the in jury; if so, the court will not speculate as to whether or not some other cause might also have produced it. On the other hand, the view-that the injury must- be solely caused by defendant’s negligence, and that it is not; enough that it should be essentially so caused, is a plain mistake,”

The defendant sought to show the necessity of the hole to enable the trucks to round a curve. But it appeared that the- top of the rail was two and a half inches above the slats, and that the flange of a wheel projected, only an inch and a quarter. There was, therefore, no occasion for any wide .opening between the slat and the rail.

In onr view there were no errors committed upon the trial, and the evidence presented proper questions of fact for the jury, and we see no reason for disturbing, their conclusions thereon.

The judgment and order should be affirmed, with costs.

O’Brien, P. J., McLaughlin and Laughlin, JJ., concurred; Ingraham, J., dissented.

Judgment and order affirmed-, with, costs.  