Edwin L. Davis, Respondent, v. Gas Engine and Power Company and Charles L. Seabury and Company, Consolidated, Appellants

Edwin L. Davis, Respondent, v. Gas Engine and Power Company and Charles L. Seabury and Company, Consolidated, Appellants. Second Department, January 19, 1912. Master and servant—negligence — injury to workman employed in demolishing a building —presumption as to safe tools and appliances — assumption of obvious risk. In a common-law action to recover for personal injuries alleged to have been sustained through the alleged negligence of the plaintiff’s master, it appeared that the plaintiff, an experienced shipearpenter, was engaged in demolishing a temporary building which had been erected by the defendant, and that while engaged in removing strips of wood which held in place strips of tarred paper, with which the roof was covered, the strip of tarred paper upon which he was sitting became loose, and slid down the incline roof, carrying the plaintiff with it to the ground. The plaintiff testified that there was no rope or ladder upon the building, and the case was submitted to the jury upon the issue as to whether the defendant had furnished the plaintiff with reasonably safe tools and appliances. Held, that the judgment should be reversed; that the presumption was that the master had performed the duty of furnishing the plaintiff with reasonably safe tools and appliances; that the plaintiff had not offered evidence sufficient to rebut this presumption; that the situation having been open and obvious, and the plaintiff being an experienced workman, he must be deemed to have accepted the risk of the employment by undertaking to do the work. Appeal by the defendants, the Gas Engine and Power Company and another, from a judgment of' the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 3d day of March, 1911, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 16th day of March, 1911, denying the defendants’ motion for a new trial made upon the minutes. Earle W. Webb [Amos H. Stephens with him on the brief], for the appellant. Frank Comesky, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The defendant is a boat builder, having- a plant near the Harlem, river in the city of New York. In the building of a boat one hundred and twenty-five feet long it became necessary to construct a temporary building over the hull to protect the workmen and the boat from the elements. The boat had be.en completed,, or nearly so, and the plaintiff, Who was an experienced shipcarpenter, who had worked upon the premises for about seven years, was directed to assist in tearing down the temporary structure. The building was cheaply constructed, the roof being made with rafters reaching from the eaves to the ridgepole through the center, these being in turn coupled together with small timbers, to which boards sixteen feet in length were nailed, extending from the ridgepole to the eaves on either side. For the purpose of shutting out the rain and snow, these boards were covered with strips of tarred paper about eighteen inches wide, the- same being held in place by strips of board overlapping the joints and nailed at intervals,, and it was While the plaintiff was engaged in removing one of these slats that the strip of tarred paper on which he was sitting came loose and slid down the incline, carrying the plaintiff to the ground, some twenty feet below. He has been awarded a substantial verdict in a common-law action for negligence, the question submitted to the jury being whether the defendant had furnished the plaintiff with reasonably safe tools and appliances for the performance of the labor, The presumption is, of course, that the master has performed this duty (20 Am. & Eng. Ency. of Law [2d ed.j, 87), and there is absolutely no evidence in this case that any of the tools and appliances which were furnished by the defendant were defective or inadequate; or that there was any failure on the part of the defendant to supply all of the necessary tools and appliances now suggested as proper. It is true that the plaintiff testifies that there was no rope or ladder upon the building, but we know óf no authority which holds that it is the duty of the master, in the performance of the details of the employee’s work, to follow him around with appliances; the duty is performed if the master has furnished such appliances as are reasonably necessary for the' performanee of the work, and the plaintiff has not overcome the presumption in favor of the master by merely showing that the defendant had not equipped the building with safety appliances to guard him in the performance of the work; he must go fur ther and show that the defendant, a boat-building concern, with a plant, had not supplied the necessary materials for the performance of the work. If there were ropes, ladders, etc., in and about the plant, which the plaintiff was at liberty to make use of, the defendant owed no further duty to the plaintiff, and there is no evidence to overcome the presumption that the master had supplied all of these things. There was evidence in the case sufficient to have warranted a jury in finding that the very building on which the plaintiff was .injured was supplied with a rope thrown over the roof, and that there were ladders inside of and leaning against the outside of the building at the very moment of the accident. But assuming that the weight of evidence was with the plaintiff upon this point, it is not sufficient to charge the defendant with liability. Proper materials upon the premises and available for use would be a discharge of the defendant’s duty, and as this is presumed to have been discharged, the plaintiff failed to establish a cause of action. Beyond this the situation was entirely open and obvious to the plaintiff, a man of experience in the particular line; there were no hidden defects which the master was hound to know and to guard against, and the plaintiff by undertaking to do the work must be deemed to have accepted the open and obvious risks of the employment. The judgment and order appealed from should be reversed and a new trial granted. Jenks, P. J., Burr, Thomas and Carr, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.