Opinion
April 6, 1906.
Frank Verner Johnson [ Max S. Bevins with him on the brief], for the appellant.
Sherrill Babcock [ Alfred E. Mudge with him on the brief], for the respondent.
On the 29th day of December, 1902, the plaintiff while in the employ of the defendant and engaged in shoveling snow off the track and from around the rails with a shovel having a wooden handle and an iron scoop or bowl, pursuant to the direction of his foreman, touched the iron bowl of his shovel against the third rail, which conveys the current of electricity by which the trains are run, known as the positive pole, and at the same time brought it in contact with a bolt projecting from a tie which communicated with the earth, which is the negative pole, thus bringing the positive and negative poles together and thereby causing a short circuit, resulting in an explosion and flash which burned him and injured one of his eyes. This action is brought to recover for the damages thus sustained.
The learned Appellate Term ( 48 Misc. Rep. 393) by a majority vote reversed the judgment and order denying a motion for a new trial and, in the opinion, placed the decision upon the ground that plaintiff voluntarily assumed the risk of injury from using the iron shovel as he used it. We are unable to agree with the learned Appellate Term.
The plaintiff was a member of the electrical repair gang and had worked in that capacity nearly six months. When snow fell which impeded the work of the repair gang, it was the duty of the members thereof to remove the snow. Plaintiff had assisted in such work before, but with a broom, and not with a shovel. He knew that the third rail conveyed a current of electricity, but according to his testimony he was not familiar with short circuits and did not know what would produce a short circuit or that one would be produced by an iron surface coming in contact at the same time with the third rail and a projecting bolt, and he had not been instructed on that point. He testifies, and in this he is corroborated, that he was specifically directed by the foreman to use the shovel with an iron blade and wooden handle and to do the particular work at which he was engaged when he sustained the injuries. He understood, and the undisputed evidence shows it to be a fact, that there was ordinarily no danger in touching the third rail. The only danger was in touching it with iron which at the same time touched another iron connected with the ground. The evidence shows that no injury would result from bringing even an iron shovel in contact with the third rail so long as it did not at the same time come in contact with another iron connected with the track. This was not an obvious danger. It was one which a layman would not be likely to know or discover unless specially instructed, or unless he happened to observe the effect. (See Hall v. U.S. Radiator Co., 52 App. Div. 90; Davidson v. Cornell, 132 N.Y. 228; Kain v. Smith, 89 id. 375.) According to the testimony of the plaintiff he was instructed to be careful but he was not warned of this danger and he had not discovered it by observation. It seems that wooden shovels or brooms which were used for removing the snow from the rails are non-conductors and that rubber gloves were worn to prevent a shock, but while the plaintiff doubtless knew that wooden shovels and rubber gloves were sometimes used, he did not, according to his testimony, know the reason why they were thus employed. The foreman of the defendant over plaintiff was familiar with this danger and testifies that he warned plaintiff and the other members of the electrical repair gang thereof. Manifestly it was the duty of the defendant to furnish plaintiff with a broom or a wooden shovel, especially in the absence of instructions as to the danger of causing a short circuit. (See Gates v. State, 128 N.Y. 221; Brennan v. Gordon, 118 id. 489; McHugh v. Manhattan R. Co., 179 id. 378; Braunberg v. Solomon, 102 App. Div. 330; Pantzar v. Tilly Foster Iron Mining Co., 99 N.Y. 368.) The jury were justified in finding that the foreman directed plaintiff to use the iron-bladed shovel without furnishing him gloves or informing him how a short circuit might be produced or warning him of the danger of injury therefrom. The questions, therefore, of plaintiff's contributory negligence and assumption of the risk and of defendant's negligence were for the jury. (See Employers' Liability Act, § 3; Rosin v. Lidgerwood Mfg. Co., 89 App. Div. 245; Ward v. Manhattan R. Co., 95 id. 437.)
It is claimed that the court erred in allowing a medical expert to testify in answer to a hypothetical question that the injury to plaintiff's eye might have been caused by molten lead. There was evidence that the metal precipitated into his eye was molten iron, not lead. The hypothetical question was objected to generally on the ground that it assumed facts not proven, but the attention of the court was not called to the fact that the question assumed that the metal was lead, whereas the evidence showed that it was iron. It is manifest that this was an inadvertence and that the injury did not depend upon whether the metal was lead.
We have considered the evidence relating to the question of damages and are of opinion that the verdict was not excessive. It follows, therefore, that the determination of the Appellate Term should be reversed, with costs, and that the order and judgment of the City Court should be affirmed, with costs.
O'BRIEN, P.J., PATTERSON, McLAUGHLIN and HOUGHTON, JJ., concurred.
Determination reversed, with costs, and order and judgment of City Court affirmed, with costs.