
    William Nyboe, Respondent, v. Joseph Stern, Moses Stern and Arthur Stern, doing business under the firm name and style of Joseph Stern & Sons, Appellants.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Master and servant — Master’s liability for injuries to servant—Actions— Instructions — Duty of master.
    Where an employee can recover for personal injuries only upon the theory that his employer failed to furnish him with a safe place in which to work, the employer is entitled to have the jury instructed as to the measure of the employer’s duty to furnish a reasonably safe place.
    Where plaintiff, a foreman in the employ of defendants, on the written order of their chief engineer to clean out a boiler, went into the boiler room, coneededly a usually safe place in which to work, and, while bending down to put a wrench on a valve, the heavy iron cover of a fertilizer dryer, weighing about a ton, which was leaning against a partition, a place in which plaintiff had never before seen it, fell upon his foot; and the chief engineer testified that the cover was usually upon the tank which at the time was being taken apart for repairs; that he had never seen the cover in that exact place before and that he had been in the boiler room shortly before three o’clock the previous afternoon, it is error to refuse to charge “That the defendants cannot be held negligent, unless from the evidence the jury can determine that it. affirmatively appears that the defendants ought reasonably to have anticipated such accident from the circumstances-.”
    Appeal by the defendant Moses Stern from a judgment of the Municipal Court of the city of Hew York, fifth district, borough of Manhattan, rendered in favor of the plaintiff.
    Frank Verner Johnson (Thomas P. Dunphy, of counsel), for appellant.
    Alfred E. Ommen (A. Mitchell Leslie, of counsel), for respondent.
   Lehman, J.

The plaintiff was a fireman in the employ of the defendants. His hours of work varied, but during the week in which he was injured he worked from midnight to eight o’clock the next morning. On Sunday morning, when he arrived at his work, he found a written order from the defendants’ chief engineer requiring him to clean out a boiler. He went into the boiler room and, while bending down to put a wrench on a valve, the heavy iron cover of a fertilizer dryer, weighing about a ton, which was leaning against a partition, fell upon his foot. The plaintiff had never seen this cover standing in that place before. The defendants’ chief engineer testified that the cover was usually upon the tank, but the tank was then being taken apart for repairs; that he had never seen the cover in that exact place before and he had been in that room shortly before going home at three o’clock the previous afternoon.

The trial justice submitted the question of the defendants’ negligence to the jury.

Obviously, the plaintiff can under these circumstances recover from the defendants only upon the theory that they failed to furnish him with a safe place to work. Hpon this point the trial justice charged quite correctly: “Irrespective, gentlemen, of any statute, it is the duty of the employer to furnish his employee with a reasonably safe place to work in. Now the plaintiff, at the time, was engaged in the work of the defendants, but notwithstanding the fact that it is the duty of the employer to furnish a reasonably safe place to the plaintiff in which to do the work, he may not rashly and negligently attempt to do the work in a place which is obviously unsafe. That is, gentlemen, to put it in other words, an employer may be guilty of negligence and furnish a place which is admittedly unsafe for his man to work in; but, if his employee, knowing that it is unsafe, notwithstanding, works in such a place, he would be charged with contributory negligence. Now, in this case, gentlemen, was or was not this opening as described to you a reasonably safe place to work in and was the plaintiff justified. in doing or attempting to do the work that he was directed to do in this place ? ”

No exception, was taken to this charge and none could properly be taken, but the defendant was entitled to request a further charge as to the measure of the employers’ duty to furnish a reasonably safe place. In this case, the boiler room was concededly usually a safe place. It became unsafe through an employee leaving a cover on which he was working in a position where it might fall. Under these circumstances the defendants are liable, if at all, under the rule that it is the duty of the master, having control of the times, places and conditions under which the servant is required to labor, to guard him against probable danger in all cases in which that may be done by the exercise of reasonable caution.” McGovern v. Central Vermont R. R„ Co., 123 N. Y. 280, 287.

In the case of Glens Falls P. C. Co. v. Travelers’ Ins. Co., 162 N. Y. 399, 404, the court says: “ Human foresight is limited, and masters are not called upon to guard against every possible danger. They are required only to guard against such dangers as would occur to a reasonably prudent man as liable to happen.”

In order to bring this rule to the attention of the jury, so that they might not find that the defendants were negligent merely because the place had not been safe, the defendants requested the justice to charge: “ That the defendants cannot be held negligent, unless from the evidence the jury can determine that it affirmatively appears that the defendants ought reasonably to have anticipated such accident from the circumstances.” This request to charge was not only correct in law but was necessary to permit the jury to intelligently consider the circumstances.

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

Gildersleeve and Seabury, JJ., concur,

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