
    Michael Glennon, as Administrator etc., of John Glennon, Deceased, Appellant, v. The Star Company, Respondent.
    First Department,
    February 11, 1909.
    Master and servant — negligence — death caused by fall through hatchway— duty to furnish safe place to work — facts raising question of negligence — contributory negligence.
    The duty of a master to furnish his employees with a safe place in which to do , the work required of them extends to the premises in which they work, the machinery supplied for doing the work and to all the appliances provided for their use, and this duty cannot be delegated.
    In considering whether or not there has been negligence in the performance of the duty to furnish a safe place to work, the method used in the performance of the work and the custom established by the master, his superintendent and foreman are material elements, where by a deviation from that custom a com. dition is caused which exposes an employee to-danger. *
    Where a hatchway covering an opening in a passageway over which an employee in a printing office was required to pass in the performance of his duties was customarily closed and for a period of two year’s opened only to put in coal or remove ashes .twice a week, at times when the presses were not running, the jury may find the master negligent in leaving the hatchway open and unguarded so that an employee using the passageway in the performance of his regular duties fell into the opening and was killed.
    The creation of such condition was not an act of a fellow-servant within the rule that exonerates a master, but, on the contrary, was a failure of the master’s absolute duty to furnish a safe place to work.
    An employee so killed cannot be charged with contributory negligence, as a matter of law, where it appears that the trap door was closed when he came to work, but was opened and left unguarded during an interval when he went to breakfast, and immediately after returning he fell into the opening when performing his regular duties, for there was nothing to lead him to anticipate the dangerous condition created during his absence.
    This is true, although there was" no evidence that he looked to see if the trap door had been opened in his absence, for under the circumstances' he was under no duty to inspect the floor to see that it was safe to walk on.
    Where there are no witnesses to an accident resulting in the death of an employee, the rule requiring evidence to show affirmatively that there was no contributory negligence is much relaxed.
    Houghton, J., dissented ; McLaughlin, J., dissented, with memorandum.
    Appeal by the plaintiff, Michael Glennon, as administrator, etc.? from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 27th day of May, 1908, upon the dismissal of the complaint, by direction of the court on a trial at the Mew York Trial Term.
    
      Herbert C. Smyth, for the appellant.
    
      Frank V. Johnson, for the respondent.
   Ingraham,J.:

In May, 1902, the defendant occupied the premises on the northwest corner of Van dewater and Gansevoort streets in the city of Mew York, in which were operated large printing presses for' the printing and publication of its newspapers. In these premises were two adjoining rooms connected by an 'archway. In one of these rooms was a large printing press extending from the floor of the room up to the floor of the room above. Alongside of this printing press there was a platform about seven inches high, about two feet six inches wide and six feet two and one-half inches long. Adjacent to this, platform was a hatchway used for conveying coal to the cellar. This hatchway was two feet three and one-half inches wide, It had been the custom to open this hatchway to' put in coal and take out ashes on Monday afternoon or on Friday night when the presses were not running which had existed during the time the defendant had occupied the premises or for two years prior to the accident. This hatchway when not in use was covered by a cover constructed of wood of the same material of which the floor of the room was made which was entirely removed when the hatchway was to be used. ■ There were four sixteen candle power electric lights on the ceiling of the room alongside of the press, and the press itself was lighted. These presses were about twenty feet long and eighteen feet high, and extended up to the ceiling of the room. The deceased was' working on a press in the adjoining room. The paper for these two presses was supplied from the floor above. When paper was needed it was the duty of one of the employees to go to and push a button in the wall behind this press alongside of which was'this hatchway. On the morning of Saturday,, the teutli of May, when the deceased went to work on the press in the adjoining room, this hatch cover was down and the premises were in their usual condition. The way from the arched opening from- the adjoining room in which the plaintiff’s intestate was engaged at work to the bell used for calling for additional supplies of paper was" -over this hatchway, although it could be avoided by walking around it. The presses in both rooms were in operation when, at about eight o’clock, the deceased went out to breakfast. About the same time a load of coal came for delivery at the premises of the defendant and the general manager of the defendant directed that the coal should be taken in. After this order was given the hatch cover was removed and a chute run up a few inches above the floor to which was to be joined a chute from the wagon in the street and through which the coal was to be delivered in the cellar. In the meantime the plaintiff’s intestate had returned to work at the press in the. adjoining room. Heeding paper for his press he walked through the archway connecting the two rooms and walking towards the bell he fell down the hatchway and sustained the injuries which resulted in his death. Ho warning was given to any of the employees of the opening of the hatchway ; there was no barrier of any kind around it; and at the time of the accident the hatchway was not actually in use, the cover having been removed to connect it with the coal wagon in the street, but it had not been connected!

There is no evidence that any one saw the deceased fall into the hatchway. The evidence as to the condition of light in the room is somewhat indefinite. It was not light enough to read a newspaper there, but was light enough to see that the hatchway was open when a person was within three feet of it. The color of the floor and of the hatchway cover was black and there seems to have been no light in the hatchway from the cellar. One of the pressmen working on the press in this room in which this hatchway existed testified that he saw this hatchway open some five minutes or so before the accident; that he was then working on the platform alongside of the hatchway, but was compelled to stop the press and go to the top of it to make some repairs and while there the accident' happened. The deceased had worked at these presses in these rooms for about two years prior to the accident.

The question presented is whether there was proof to justify the submission of the question of the defendant’s negligence and file plaintiff’s intestate’s freedom from contributory negligence. Irrespective of the provisions of the Building Code relied upon by the plaintiff I think there was evidence to justify the submission of ' this case to the jury. It is one. of the fundamental principles appli cable to the relation between employer and employee that the. employer is charged with the positive duty of furnishing to his employees a safe and proper place in which they are to do the work required of them. This duty extends to the premises in which the employees are put to work ; the machinery supplied for doing the work and all of the appliances provided for their use. It is a duty that cannot be delegated, but is a positive obligation imposed upon the master, and a neglect to perform it subjects him to liability for the injuries sustained by an employee in consequence of that neglect. In considering whether or not there has been negligence in the performance of this duty the method that has come into use in performing the work and the customs that have been established by the master and his superintendents and foremen are material elements to be considered when by a deviation from that custom an obstruction or condition is caused which exposes his employees to danger of injury. It was part of the duty of the deceased to give the signal to an employee upon the floor above" to supply the press at which he was working with paper. The master had provided a signal for that purpose, which required the employee operating the press at which the deceased was engaged to walk to the adjoining room and behind a press in operation, and the direct pathway to give this signal lay over a hatchway that had been constantly kept closed while the presses were in operation. To open this hatchway, leaving it unguarded directly in the path of defendant’s employees when engaged in the performance of their duty at a time when, according to the custom established, it was never open but securely covered, placed a pitfall in the way of an employee in the performance Of his duty, which, it seems to me, was evidence of a failure by the master in performing the duty of providing a safe place for his employees to work. The danger of a man walking on this floor and falling down such a trapdoor was obvious, and there was created by the direct intervention of the master a condition which ‘ exposed his employees to serious injury and which could easily have been obviated by some barrier of notice which would have prevented such injury. The man in charge of the work directed the' hatchway to be opened, the man to whom such orders were given opened the hatchway and went to the cellar, leaving it unguarded, and the deceased fell into the open hatchway. There is evidence that this hatchway remained in this condition for at least five minutes before the accident, and all of the defendant’s employees who were required to use this floor were thus exposed to a danger which was perfectly obvious, and which a prudent man would have apprehended. The creation of this condition was not the act of a fellow-workman within the rule that exonerates a master from the negligence of such an employee, but was a failure of the master to see to it that the place in which his employees were required to work was maintained in a reasonably sáfe condition for them to perform the work that they were required to do. It seems to me that there was thus -presented a quéstion as to whether or not the defendant was not guilty of negligence in the performance of his duty.

A more serious question is presented as to whether the evidence justified the finding that the deceased was free from contributory negligence. He came to work at eight o’clock in the morning, when the trapdoor was properly closed and the place safe; he went to breakfast, was absent fifteen or twenty minutes, and while absent this unsafe condition had been created, and he returned to work and was thereafter required to walk through this room in which there existed an unsafe and dangerous condition, and was killed as the direct result thereof. There was certainly nothing that had been brought to his attention that imposed upon him the duty of anticipating that the dangerous situation had been created during his absence; nothing that imposed upon him the duty .of examining the floor to see if it was safe to walk on, and thus a different situation is presented than where a- person approaches a steam railroad track or is in a position where a prudent man must anticipate danger and is required to be alert in guarding against it. It is true that there was no evidence that he looked to see if a hole had been created in his absence which would endanger his life, but there certainly was no rule of law which required him to examine the floor for such a purpose. The custom which had existed as to the time in which this hatchway should be in use has material bearing upon the question of his duty to inspect the floor to see that the cover of the hatchway had not been removed. He also had a right to rely upon the performance of the duty imposed by law upon the master not to create a condition of danger to his employees without some warning. Considering all the circumstances and the rale that where'an employee is killed and is thus unable to explain his action just prior to the happening of -the acbident which no one witnessed, the rale requiring evidence to show affirmatively that there was no contributory negligence is much relaxed ; and if, from all the evidence, the jury are justified in finding that the deceased did proceed with the care required-of him by law, the lack of direct .testimony that he did look is not a bar to his recovery. Thus from the whole case I am satisfied that there was evidence both as to the defendant’s negligence and the freedom of the deceased from contributory negligence which required that this case should have been submitted to the jury.

The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to thd appellant to abide the event.

Patterson, P. J., and Clarke, J., concurred; McLaughlin, J., dissented; Houghton, J., dissented on the ground that no negligence on the part of the defendant was proven.

McLaughlin, J. (dissenting):

The evidence does not justify a finding that the intestate was free from contributory negligence. He may have been, but this is a guess, a mere conjecture, and I cannot, therefore, vote to reverse this judgment. I dissent. ....

Judgment reversed, new trial ordered, costs to appellant to abide event.  