Opinion
February, 1905.
Vincent P. Donihee, for the appellant.
Frederic B. Jennings, for the respondent.
Whether the swerving of the log was or was not due to the "snub" line on the other end of it does not clearly appear nor is it necessary for us to determine. Apart from this we think the evidence would justify the inference that the negligence of the engineer in operating the engine so as to drop the log onto the plaintiff, was due to the absence of the signalman, for whose absence the defendant is chargeable. There being upon this a question of fact, taking the inferences most favorable to the plaintiff, which upon a nonsuit we must do, we think it was error to dismiss the complaint, because there was sufficient evidence from which the jury could conclude that the proximate cause of the accident was the failure of the defendant to keep upon the work a signalman, without whose presence an accident was probable, and as appears happened the moment he was withdrawn.
Without the signalman the engineer could not with safety determine when and where he should drop the timbers, and those who like the plaintiff were engaged in laboring work on the dock, had a right to assume that some one would be designated by the master to give the customary signals to the engineer. They cannot be said to have assumed the risk of the absence of the signalman, for such risk did not exist until a moment before the accident, at which time the signalman had been withdrawn. If, with knowledge of this fact the plaintiff had continued to work, then the doctrine of assumed or obvious risk would apply; but in view of the testimony showing that but a brief interval of time elapsed between the removal of the signalman and the accident, we do not think that as matter of law it can be said that the plaintiff assumed the risk, and thus barred his right to recover.
We have not overlooked the testimony given that it happened at times when the foreman went away that some of the other men were appointed to give the signals in his stead; nor the fact that upon another occasion and in another employment this plaintiff himself had performed that duty. Such testimony only tends to prove that the duty of the signalman demanded no special skill or proficiency but that any of the employees engaged in handling the timber could give the signals as well as the foreman. The consideration of this evidence, however, does not help us to solve the question presented, because, no matter how easy it might have been for any of those engaged upon the work to have acted as signalman, the fact here appears that no one was so designated to act after the foreman was called away. The testimony in this case is that no request or designation of any one was made to take the foreman's place when he withdrew. It must, we think, be conceded that an important part of the work was the lowering of the timbers to the deck of the catamaran, and that a signalman was necessary to prevent accidents.
Starting with the view that we entertain that the jury could find as matter of fact upon the evidence that the proximate cause of the accident was the sudden lowering of the timber, due to the absence of the signalman, we do not see why the jury had not the right legally to infer that the act of the superintendent, who was its alter ego, in taking away the foreman signalman and designating no one to take his place was an act of negligence. The jury could reasonably infer that the accident would not have happened had there been a signalman attending to his duties, and the fact that the signalman who was so engaged left his position does not excuse the defendant. In Flike v. B. A.R.R. Co. ( 53 N.Y. 549) it was held that where an agent of the defendant, whose duty it was to make up and dispatch trains, sent out a heavy freight train with but two brakemen when three were required, and in consequence a fireman was killed, the defendant was liable.
With respect to the duty imposed upon the master, we can think of no distinction in principle between the act of engaging in a hazardous work without sufficient men, or starting the work with a sufficient number and then removing one, whose absence made the work extra hazardous. It was necessary for the safety of this work that there should be a signalman; and this duty was not discharged by the master appointing one, and thereafter directing him to leave. We think, considering the dangerous character of the work and the important relation which the signalman bore to its safety, that the duty rested upon the master of seeing to it that some one was at all times supplied who could attend to this work.
The question, therefore, of the defendant's negligence, we think, was one for the jury equally with that of the plaintiff's contributory negligence or assumption of risk, which upon the evidence should have been submitted to the jury as questions of fact, and not disposed of on the motion to dismiss the complaint as matters of law. It follows that the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P.J., MCLAUGHLIN and HATCH, JJ., concurred; INGRAHAM, J., dissented.
I do not concur in the reversal of this judgment, as I do not think that the evidence shows that the injury was caused by the withdrawal of the signalman, or that the act of the engineer in lowering the timber was caused by his failure to receive a signal from the signalman.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.