
    Jeremiah F. Lynch, Appellant, v. American Linseed Company, Respondent, Impleaded with the Deane Linseed Oil Company.
    Second Department,
    June 8, 1906.
    Negligence ^injury to employee shoveling grain into elevator—when . assumption of risk question for jury.
    The defendant was engaged in unloading grain, from a barge by means- of an elevator, the leg of the elevator shaft being sunk deep into the grain! The grain ■-was drawn up into, the warehouse by steel buckets, revolving, with great rapidity on an endless chain inside of the leg and shaft.
    
      As. the buckets took up the grain the legs sank deeper into the grain, the buckets not being visible to the workmen. As the grain was exhausted , ground the leg, the grain farther away would sometimes flow of its own weight, and move down towards the leg, and "if men were put to shoveling before it had ceased by its' own gravity to move into the exhausted space around the leg, they might be carried with it. The plaintiff was ordered by the foreman to shovel grain towards the leg, the grain began to run, and, being unable by any support or guard to save himself, he was carried with the grain to the buckets and severely injured.
    
      Held, that the negligence of the defendant in failing to supply ropes or guards to meet- such an emergency was a question for the jury;
    That it was error tó set aside a verdict for the plaintiff on the ground that the risk was assumed by him, for risks which can be avoided if a master-fulfills his duty to furnish safe appliances are not assumed by the servant, unless they are so plain and certain that as a matter of law to work in the face of tli'em is an assumption of the risk.
    Appeal by the plaintiff, Jeremiah F. Lynch, from a judgment of the Supreme Court in favor of the defendant, the American Linseed Company, entered in the office of the clerk of the county of Richmond on the 17th day of May, .1905, upon the dismissal of the complaint by direction of the court after a trial at the Richmond Trial Term, the verdict of a jury previously rendered in favor of the plaintiff having been set aside,- and also from an order entered in said clerk’s office on the' 12th day of April, 1906, dismissing the complaint and vacating, the verdict of a jury in favor of the plaintiff.
    
      Richard J. Donovan [Herbert D. Cohen with him on the brief], for the appellant.
    
      Frederick Hulse, for the respondent.
   Gaynor, J.:

This is an action for damages by servant against master for negligence. This is the second trial. On the first the plaintiff had a verdict for $10,000 but it was reversed here by a vote of three to two without opinion, but - on the stated ground “ that the plaintiff assumed the risk which resulted in the injury complained of.” There was a dissenting opinion (95 App. Div. 628). On this trial the learned trial judge- reserved the defendant’s motion at the close to dismiss until after verdict (which was for the plaintiff for $5,000), and then set the verdict aside and granted it.

The defendant was unloading a barge of linseed, by hoisting the grain up into its warehouse by means of air elevator. The leg of the elevator shaft was sunk down deep into the grain through the hatchway of the barge, and by means of steel buckets revolving with great rapidity on an endless chain inside the leg and shaft, the grain was drawn up through tlietn into the -warehouse!a As the» buckets revolved and tools up the grain the leg was sunk deeper - and deeper into the grain, until it went down to the bottom of the barge. The buckets were not visible to the workers. When all the grain around the leg had been exhausted, men were, put into the barge to shovel the grain" iii toward the leg so that the buckets would continue to be buried in it and whirl it up. As the'grain . would grow exhausted around the leg the grain farther away would sometimes grow quick of its own weight .and move down toXvard the leg. If men were put in to shovel before a sufficient space was exhausted around the leg and the grain had consequently not yet ceased by its own gravity to move into the exhausted space close to the leg, it might carry a man along with it to the leg, which could not ordinarily happen later oh. That'is what happened to the plaintiff. He was hurried down the hatch by the foreman, and had to stand .too near the leg for lack of space farther a*way. The grain wheke he,stood immediately began to run, and drew him down to the leg, and his feet were caught by the buckets and greatly mangled before the machinery was stopped. His .own story-fully, described the terrible scene and why he could not save himself : “ When the grain pulled me in I was about three and a half feet from the elevator leg. I grabbed around for something to ' catch hold of, I even 'tried to catch the wall, and tried to dig my linger nails 'into the side," and I looked around for a board or a rope; there was nothing there to save me; positively nothing.”

- It was no doubt for the jury to say whether the employer was not guilty of neglect of duty to his servants -in not furnishing means for them to prevent themselves from being,drawn down to the leg buckets by the grain when it grexv "quick, such as the simple device of ropes extended taut across the boat from side to side, or hanging overhead from the deck' ceiling, or along the side's, or of guard ropes or rails around the leg. This does not seem to have been questioned when the case was here before, noi' is.it seriously questioned now.

The verdict was set aside and the complaint dismissed on the sole ground that the servant assumed the risk. But it seems to me that it was a fair question of fact and not one' of law whether there was an assumption of the risk by the servant. His testimony on this trial made it fairly plain, or at least questionable, whether he, a simple laborer, understood the danger of getting into the buckets, or that he could get into them. He testified quite fully about them and their exposed position on the first, trial,, which .led to the Reversal of his judgment," but explained on the second that much that he said on the first on that head he had learned after his hurt, especially from an engineer he knew. This is not at all improbable; indeed, it is a thing familiar to trial judges.

An assumption by the servant of a risk which it is the master’s duty to remove can rarely be found as a question of law. All risks whether plain or obscure and uncertain, which áre incident to the work, and cannot be avoided by the master in the fulfillment of his duty to provide his servant with safe appliances and a safe place to work, are assumed by the servant as matter of law, unless the master assume them by agreement. This is familiar to us all. But the risks which can be avoided by .the master by fulfilling his said duty, are not assumed by the servant unless they be so plain and certain to him that it has to be said as matter of law that his working in the face of them, was an assumption of them (Hawley v. Northern Central R. Co., 82 N. Y. 370 ; Kain v. Smith, 89 id. 375 ; Davidson v. Cornell, 132 id. 228 ; McGovern v. C. V. R. R. Co., 123 id. 280). If they be not so plain and certain a.s that, then the question becomes one of fact instead of law, with the burden of' proof on the master (Dowd v. N. Y., O. & W. R. Co., 170 N. Y. 459) ; and that was this case on the second trial, for the case on that head was then materially different to what it was on the first trial. The'accident happened immediately on the plaintiff getting down the hatch,-where he was hurried by the foreman. It cannot well be said that he assumed the risk of his situation in the moment which ensued before the accident. If he had been sent dqwn a little later, when the exhausted space would have been greater, and he could have got farther from the leg, the accident would probably not have happened at .all.

On the second trial the jury were probably influenced in respect of the, amount.-úf the verdict by the uncertainty about the law of the case, and it seems to me that instead .of reinstating the verdict' we should order a new .trial. ' -7

The-judgment should be reversed and a new trial granted.

Jenks, Hooker, Rich and Miller, JJ., concurred.

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