
    James Rossiter, Appellant, v. Peter Cooper’s Glue Factory, Respondent.
    Second Department,
    February 28, 1913.
    Master and servant—negligence — injury by falling into unguarded vat—assumption of risk — proximate cause — erroneous nonsuit.
    In an action by an employee in a glue factory to recover for personal injuries sustained by falling into an unguarded vat of boiling material ■while stirring the same with a pole so short that he was compelled to stoop over the vat, it appeared that the plaintiff had not been warned , of any danger nor informed as to the method of doing the work; that the only pole available for him to use was shorter than those used by other employees, and that it was customary to place a guard rail around the vats which were on a level with the floor. Defendant’s foreman testified that he never worked on the vat in question without a guard rail around it; that there was a split or crack on the top of the steam pipe in one corner of the vat; that while he was stirring the material in this vat about six weeks before the injury to the plaintiff there was a strong pressure against the pole used by him from the escaping steam causing him to lose his balance and fall against the guard rail, and that he had reported this condition of the tank to the defendant’s superintendent.
    
      Held, that the plaintiff did not assume the risk of falling into the vat as a matter of law and was entitled both under the common law and the statute to have his ease submitted to the jury.
    When several proximate causes contribute to an accident and each is an efficient cause, without the operation of which the accident would not have happened, it maybe attributed to all or any of the causes.
    Appeal by the plaintiff, James Eossiter, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of June, 1912, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 18th day of June, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Don R. Almy, for the appellant.
    
      James B. Henney, for the respondent.
   Rich, J.:

This appeal is from a judgment dismissing the plaintiff’s complaint in an action by an employee to recover for personal injuries, and also from an order denying plaintiff’s motion for a new trial. The complaint alleges a cause of action under the Employers’ Liability Act (Consol. Laws, chap. 31 [Laws of 1909, chap. 36J, art. 14, as amd. by Laws of 1910, chap. 352), at common law, and also under section 81 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1910, chap. 106). The notice served under the Employers’ Liability Act was excluded as insufficient, and when the plaintiff rested his case the complaint was dismissed upon the ground that the cause of action under the Labor Law could not be maintained (in making this ruling the learned court followed the decision of this court on a former appeal), and also upon the ground that there was no evidence establishing defendant’s liability at common law. As indicated, the case has been here before. On the first trial the plaintiff obtained a judgment, which was reversed. (149 App. Div. 752.) Upon the second trial the plaintiff proceeded upon the theory that the defendant was liable upon each of the causes of action set forth in the complaint, and he gave some additional evidence which it is claimed obviates the difficulties which prevented an affirmance when the case was here before. I think he is right, and I am also of the opinion that the judgment must be reversed on the authority of Fitzwater v. Warren (206 N. Y. 355) and Welch v. Waterbury Co. (Id. 522).

' The plaintiff had been in defendant’s service at the time of the accident thirty-two years, being employed nearly all of that time in the skinning department; two or three weeks before the accident he was transferred to the evaporating room, and a day or two before the accident he was sent to the foreman of the boiling house. At about eleven o’clock on the day of the accident the foreman directed plaintiff to accompany him upstairs to the floor of the boiling room. There were a number of vats in this room, in which material entering into the manufacture of glue was boiled and treated. The vats were five feet wide, ten feet long and about five feet deep. The top of the vats were level with the floor. The vats were filled with glue stock (pieces of skins, hides and meat of different shapes and sizes, some being three feet in diameter), and the vats are then filled with boiling water, which is kept boiling by live steam which is turned into the bottom of the tank. In order that the material may be properly dissolved, it was necessary to keep it continuously in motion. The foreman directed plaintiff to go to vat No. 4. Plaintiff testifies that he said: “ Jim, you go to number 4 vat. There is a pole sticking into it, and stir them up, break them up.” The defendant furnished three wooden poles for use in this room, two of which were nine feet long, and the third, about six feet, was in No. 4. It seems that a person could stand erect when using a nine-foot pole and reach the material in the bottom of the vat, but that it was more or less dangerous to use the shorter pole because, in order to reach the material in the bottom of the tank, it was necessary to bend over the tank, with the liability that when the moving contents of the vat came in contact with the pole there was danger of the person losing his balance. The defendant furnished movable guards for use around the tops of the tanks. When the order was given to the plaintiff, O’Neill and a workman named Ford were mixing the contents of two nearby vats, each using a long pole. The short pole, the only one available, was in the No. 4 vat, which was unguarded, and it is claimed that no instruction was given to him as to the manner in which he was to use the pole, and that he was not warned of any danger, and it appears that he was not informed as to the method of doing the work. He says that he had never seen the pole, did not know its length, and had never seen anything in the boiling room before that day. The plaintiff went to vat Ho. 4 as directed. He could not see into the boiling vat, and when he attempted to push the end of the pole to the bottom of the tank it was necessary for him to stoop over to within a foot of it. As he did this, something hit the pole, “ the pole kicked right out of my hand. * * * When that happened I lost my balance and I fell in.” .

Defendant’s night foreman testified that he worked nights on vat Ho. 4, but that he never worked on it without a guard rail around it; that about six weeks before the accident to plaintiff, while he was on vat Ho. 4, he put the end of a nine-foot pole on the material at the bottom of the vat, when there was a strong kick against the end of the pole which caused him to lose his balance and fall against the guard rail around the tank; that there was a split or crack ten or twelve inches long on the top of the steam pipe in one corner of the vat, to which he attributed the side pressure he had noticed; that he had experienced the same kick five or six times before, the accident, under the same conditions that existed when plaintiff was injured. He reported the condition at this tank to the night superintendent, who promised to have the steam pipe repaired, but it had not been done at the time of the accident.

It is claimed that several things contributed to the plaintiff’s injury. The defective condition of the steam pipe permitted a greater pressure of steam to come in contact with the material, keeping it in constant rapid motion; the pole was so short that it was impossible to operate it without stooping over the vat, and the absence of the guard rail. When several proximate causes contribute to an accident, and each is an efficient cause without the operation of which the accident would not have happened, it may be attributed to all or any of the causes. (Ring v. City of Cohoes, 77 N. Y. 83, 90; Ehrgott v. Mayor, etc., 96 id. 264; Thompson v. Town of Bath, 142 App. Div. 331; Sweet v. Perkins, 196 N. Y. 483.)

■ I think that the presumption arises that if the plaintiff had been provided with a pole of suitable length, or if the guard rail had been in place, the accident would not have happened. The dangers to which the plaintiff was exposed were not open and obvious, and were not known to him; they were not incidental risks due to the negligence of the defendant, and he did not assume the risk of being precipitated into the vat as matter of law. (Gorman v. Millikan, 142 App. Div. 207.) The risks of service which a servant assumes are those only which occur after the due perfoimance by the employer of those duties which the law enjoins upon him. (Fitzwater v. Warren, supra; Welch v. Waterbury Co., supra; Long v. Fulton Contracting Co., 140 App. Div. 685; Persons v. Bush Terminal Co., 68 Misc. Rep. 573.) The question of assumption of risk was for the jury, and the burden of proof was with the defendant. (Fitzwater v. Warren, supra.) It was for the jury to say whether the defendant was negligent in setting the plaintiff to work at the unguarded vat without warning or instruction, with a pole of the length of the one furnished him, with whatever danger there was of its being deflected by the nature of the work or the condition of the vat and of his losing his balance thereby. In short, under the combined facts shown by the evidence, the plaintiff was entitled under the common law and statute to have his case submitted to the jury. (O’Keefe v. Great Northern Elevator Co., 105 App. Div. 8; Smith v. Manhattan R. Co., 112 id. 202; Warren v. Post & McCord, 128 id. 572.) And the exceptions to the refusal of the learned trial court to submit these questions to the jury present error which requires a reversal of the judgment.

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

Jerics, P. J., Hirschberg, Thomas and Carr, JJ., concurred.

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