
    Eugene E. Stokes, Appellant, v. The Barber Asphalt Paving Company, Respondent.
    First Department,
    October 22, 1909.
    Master and servant — negligence — unguarded elevator — conflict of laws — law of place of accident controls — assumption of risk — promise to repair defect — authority of superintendent — when negligence, assumption of risk and contributory negligence for jury.
    Where an injury to a servant, caused by the alleged negligence of his master, happened in another State, the liability is governed by the laws of that State.
    
      By the law of New Jersey, where a master by statute is required to guard elevator shafts, a violation of the act to the knowledge of the servant does not relieve the latter from the assumption of risk incident to the violation, which defense is available to the master.
    But, in the State of New Jersey, as in this State, such assumption of risk by a servant knowing of the violation of the statute does not exist where the servant complained of the defect and the master promised to remedy it as an inducement to the servant to continue his employment. Where such promise was general and indefinite, the master’s undertaking to remedy runs for a reasonable time.
    Such promise to remedy a defect can be made on behalf of a master by one standing in his place or having authority to make it. Express delegation of authority need not be proved, but may be inferred from acts which fairly tend to show its existence.
    Thus, where the master’s superintendent had power to stop, start and repair machinery, to hire and discharge servants, it may be inferred that he had authority to promise to repair a defective elevator on behalf of his employer.
    Where an elevator in'a factory was not placed in the charge of any particular person, but could be operated by any servant who desired to use it, and the master failed to guard the shaft openings as required by statute, whereby an employee in the course of his duty was injured by the descent of the elevator, it is for the jury to say whether the master was negligent in failing to guard the elevator, or to put it in charge of an operator, or to install some signal to give warning that it was about to be moved.
    Appeal by the plaintiff, Eugene E. Stokes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of March, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the New York Trial Term.
    
      Arthur C. Train, for the appellant.
    
      Frederick W. Catlin, for the respondent.
   Houghton, J.:

The defendant conducts a manufacturing establishment for the manufacture of asphalt paving blocks in the State of New Jersey. The plaintiff was in its employ as boss of a gang of men.

Immediately outside its press house and in the open yard the defendant maintained an elevator, supported by upright posts, used for hoisting and lowering material to and from the second story. The elevator pit was only a few inches in depth and only sufficient to permit the floor of the elevator to sink to the level of the ground so that material might be wheeled upon it. The elevator shaft was open on all sides both at the ground and at the second story, and ivas operated not by an elevator man but by any one who had occasion to use it..

At the time of the accident there was a law of the State of New Jersey enacted for the purpose of regulating the age, employment, safety, health and work hours of persons, employees and operatives in factories, work shops, mills and all places where the manufacture of goods of any kind was carried on, providing that the openings of all hoistways, hatchways, elevators and well-lioles upon every floor of any place coming within the provisions of the act should be protected by good and sufficient trap-doors or self-closing hatches and safety catches, or strong guard-rails at least three feet high, and should be kept closed and protected at all times except when in actual use.

On the ground floor of the press house there were very large outside doors so close to the elevator that it interfered with their being opened. The superintendent of defendant directed the plaintiff to remove the hinges upon them, and for the purpose of so doing the plaintiff procured a block and tackle and lifted one of the doors from its hinges and held it suspended for the purpose of unscrewing the nuts and driving out the bolts which held the hinges in place. While the door was thus suspended it formed an angle with the elevator shaft. The defendant’s superintendent was present assisting and directing the plaintiff, and in the course of the work of unscrewing the nuts it became necessary for the plaintiff to go into the angle formed by the door and the elevator shaft in order to unscrew the nut of a particular bolt, and while he was engaged in that work, his body partially projecting over the elevator shaft, some one lowered the elevator and it caught him on the hip and crushed him underneath, tearing off one of his legs at the knee joint.

A few days before the accident the plaintiff had called the attention of the superintendent of defendant to the unguarded condition of the elevator, and told him that he had seen a man several days before wheel a barrow load of blocks onto the elevator, when some one above pulled the cord and the elevator ascended, throwing the load back, and that the workman narrowly escaped injury, and pointed out to him that it was equally dangerous at the second story, because some one might attempt to step on the elevator- just as it was being started by some other person. The plaintiff further said to the superintendent: This is a very dangerous place here. I do not like to work about it. Some one is liable to be hurt ” — and the superintendent replied, “I will have it attended to.” Bails were immediately put around the elevator at the second story, but none up to the time of the accident were placed around it at the ground.

At the close of the plaintiff’s testimony, on motion of the defendant, the court granted a nonsuit, and from such disposition of his case the plaintiff appeals.

The accident happened at a manufacturing plant in the State of New Jersey, and the liability of the defendant is governed by the law of that State. The act requiring the guarding of elevator shafts, above adverted to, was plead and proved, and the defendant manifestly came within its provisions, and was guilty of a violation of its requirements. In considering other provisions of the same act, the Court of Errors and Appeals of that State, in Mika v. Passaic Print Works (70 Atl. Rep. 327), held that a violation of the act by the master to the knowledge of the servant did not relieve the servant from the assumption of the risk incident to the violation, and that such defense was available to the master notwithstanding he failed to comply with the provisions of the statute.

While the doctrine of assumption of risk on the part of the servant who knows the existence of the defect prevails in that State and extends to a known violation of the statute, an exception also prevails, as it does in our own State, where the servant has complained and the master has promised to remedy the defect. In Andrecsik v. New Jersey Tube Co. (73 N. J. L. 664).the law is stated as follows: “ The servant assumes not only the ordinary risks incidental to employment, but as well all risks arising and becoming known to him during his service. The master, by promising to amend a defect complained of, as an inducement to the servant to continue, forthwith takes from the servant the risk, and thereafter, and during the period for repair assumes it. Where the promise is general and indefinite, the master’s undertaking runs for a reasonable time. * * * Where it is to repair at a fixed time, it runs until the termination of the time fixed.”

In the above case the decisions of the New Jersey courts are collated and reviewed, and the holding of our own Court of Appeals in Rice v. Eureka Paper Company (174 N. Y. 385) is approved and followed. From this decision it will be seen that we are not compelled to assume that the rule of the common law as to assumption of risk prevails in the State of New Jersey as it does in our own, but we have an express holding of its courts that it does.

Such promise to remedy the defect can be made in behalf of the master by one standing in his place or having authority to make it. Express delegation of authority need not be proved, but authority may be inferred from such facts as fairly tend to show its existence. (Spencer v. Haines, 74 N. J. L. 13; Fox v. Kinnear Pressed Radiator Co., 75 id. 716.)

The superintendent of the defendant had power to stop, start and repair the machinery of the defendant, and hire and discharge its men ; and it may be fairly inferred that he had authority to make a promise in behalf of the defendant to repair a defective machine or guard against the defective situation. From what the plaintiff had observed he concluded that the manner of operation of the elevator in the place where it was installed, as well as its unguarded condition, was dangerous to men working about it and called the superintendent’s attention to it, and he promised to have the defect remedied, and in fact did attempt to remedy it at the second floor, but did nothing so far as the ground floor, where the plaintiff was engaged, was concerned. The promise to remedy fixed no time, and, therefore, it was to be done within a reasonable time.

The elevator was open, operated by a piston, and not in charge of any particular man, but was operated by any workman who desired to use it. That it might be started by someone without the knowledge of others working around it was quite apparent.

Under the facts proved by the plaintiff we are of the opinion that it was for the jury to say whether or not, in the exercise of reasonable care, it was the duty of the defendant to place some kind of guards about the elevator or put it in charge of one man to operate, or install some signal which would warn workmen about it that it was being moved, as well as to determine, notwithstanding the promise of the defendant through the superintendent to remedy the defect, whether the plaintiff continued to assume the risk or was guilty of contributory negligence on his part.

It follows that the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, P. J., Laughlin and Clarke, JJ.,. concurred.

Ingraham, J.

(concurring):

I concur in the reversal of this judgment on the ground that the defendant’s superintendent who was in charge of this work knew or should have known that the plaintiff while at work was in danger of being struck by the elevator if it descended. It was his duty, therefore, to see to it that while the plaintiff was at work the working of the elevator was suspended so as not to expose the plaintiff to any unnecessary danger. A violation of that duty was negligence which justified a recovery.

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