
    Florian J. Bohn, by his Guardian ad litem, App’lt, v. Frederick C. Havemeyer et at., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed May 8, 1889.)
    
    Negligence—Contributory—Co-employees—When improperly submitted to JURY.
    The plaintiff was employed by the defendants in their refinery as a shoveler. It was his duty when the sugar was low in the bins to shovel it towards and into the discharging orifice, and when the discharging orifice was full, to keep it open. The plaintiff had been engaged in the work • for some time, and was acquainted with the construction of the bins and the method of work. While so engaged, the plaintiff entered a bin with a co-employee to open it, when a sudden subsidence of sugar occurred drawing both downward. While in this position, his co-employees threw a rope around his chest and pulled him out, and caused the injuries complained of. The defendant set up contributory negligence, alleging that the plaintiff and his co-employee contributed to the accident by permitting a crust to form, and by digging and entering a pit directly over the discharging orifice for the purpose of reaching and breaking the crust with a pole. The evidence tended to show that the bins had been long in use, were properly constructed, and not out of repair, and that the plaintiff had the same means of knowing the danger as the defendants. Held insufiicient to justify the submission to the jury of the question of defendant’s negligence, and consequently the exceptions to the charge, and to the rulings upon the question of damages, are unavailing; that no available exceptions appearing to the admission or exclusion of evidence relating to defendant’s negligence, the judgment should be affirmed.
    Appeal from a judgment of the general term of the supreme court, second department, affirming a judgment entered on a verdict, and dismissing the complaint, on the merits.
    
      Julius KlamJce, for pl’ff-app’It; Joseph A. Burr, for def’ts-resp’ts.
    
      
       Affirming, 13 N. Y. State Rep., 589.
    
   Follett, Ch. J.

For several years before the accident, which is the subject of this action, the defendants had owned and operated a sugar refinery at Brooklyn, N. Y., in which the plaintiff was employed as a shoveler. Upon the second floor of the refinery are bins about ten feet long, five feet wide, and thirteen feet deep, into which refined sugar is discharged from the mill on the third floor. A hole about two feet square is cut in the bottom of each bin through which sugar falls into a packer, which presses it into barrels. The action of the packer is automatic. When a barrel is filled, a valve closes in the packer and stops the flow of,sugar from the bin; and when the filled barrel is replaced by an empty one, the valve opens and permits sufficient sugar to flow from the bin into the packer to fill the barrel. This operation is repeated until all of the sugar in the bin is barrelled. It is the duty of the shovelers when the sugar is low in the bin, to shovel it towards and into the discharging orifice; and when the Mil-is so full that shoveling is unnecesary, it is their duty to-keep the discharging orifice open. The plaintiff had been engaged in this work previous to the day of his injury, and was acquainted with the construction of the bins and the method of discharging sugar from them.

Occasionally the discharging orifice in the bottom of the bin becomes clogged, and then it is the duty of theshovelers to open it by running a pole down through and loosening the sugar about the orifice. On the occasion of the accident in question, the discharging orifice became-clogged, and the plaintiff entered the bin with a co-employee to open it, but the depth of the sugar was so great that the-pole used wTas not long enough to effect the purpose. A shovel was procured and they dug down into the sugar far-enough to enable them to reach the orifice with the pole. After some difficulty they accomplished their purpose, and therupon a sudden and unusual subsidence of sugar-occurred, drawing the plaintiff and his co-employee down-’ wards. The plaintiff’s companion sank into the sugar, and that which was above him came down upon and suffocated him. The plaintiff, who evidently was not standing in the-lowest part of the pit, was not covered, like his companion, but was surrounded by sugar to a point somewhat above-his waist. When in this situation his co-employees threw a rope around his body, in the region of his chest, and pulled him out, by which means, he alleges his chest and lungs were injured.

It is supposed that the sugar became caked, forming a large dome shaped crust over the discharging orifice; and that all the sugar underneath it passed through the packer into the barrels, leaving a cavity, and that the breaking of the crust caused this unusual subsidence, which, together with the fact that the shovelers were in the pifi which they had dug, was the immediate cause of their being overwhelmed.

The plaintiff, for the grounds of his action, alleged: (1) That the bin was improperly and negligently constructed;, and (2) That the defendants knowingly exposed the plaintiff to a danger unknown to him, but well known to them. In addition to a general denial, the defendants alleged that the plaintiff and his co-employe, negligently contributed to the accident, by permitting the crust to form, and by digging and entering a pit directly over the discharging orifice, for the purpose of reaching and breaking the crust with, the pole.

The undisputed-evidence is that the bins had long been in use, and no witness was called to show' that they were defectively constructed, out of repair, or that they might have been improved. • The only evidence in support of the plaint-tiff’s second allegation was given by Xcigel, a former employee in the refinery, who testified: “ It is necessary to go onto the sugar, or it would stop. In doing so, in working there, the sugar is liable to run in upon a person so employed. It happened twice to me. * * * Once the foreman was present when this thing occurred; he was up on the other floor looking down at it, but a man was near me, he lent his hand, or else I would have been drawn down myself. * * * When I was caught in the sugar, I don’t know whether the foreman looking down from the floor above, was the one who lost his life on that occasion, or another one. I went in about waist high. The bottom of the bin was perfectly flat.” This witness does not state when these occurrences happened, or who were present. It is apparent to any one that sugar, while being drawn from a bin, would run and surround, to a greater or less extent, a person at work in the bin. The plaintiff had the same means of knowing the danger as the defendants", and the evidence of ISTeigel was insufficient to sustain a finding that defendants knowingly exposed the plaintiff to a danger unknown to him, but well known to them.

Whether the defendants were negligent, and whether the plaintiff negligently contributed to his injury, were submitted to the jury as questions of fact, and found for the defendants, which verdict the trial court refused to set aside.

It is urged in behalf of the appellant that the court erred in giving and refusing certain instructions to the jury; and, also, in ruling upon the admissibility of evidence relating to the question of damages.

After an examination of the evidence, we are satisfied that it is insufficient to justify the submission to the jury of the question of defendant’s negligence, and, for this reason, the exceptions to the charge, and to the rulings upon the question of damages, are unavailing. Finding no available exceptions to the admission or exclusion of evidence relating to the defendant’s negligence, or to the plaintiff’s contributory negligence, the judgment should be affirmed, with costs.

All concur.  