Vincenza Pepe, as Administrator of the Personal Estate of Donato Pepe, Deceased, Appellant, v. The Utica Pipe Foundry Company, Respondent

Vincenza Pepe, as Administrator of the Personal Estate of Donato Pepe, Deceased, Appellant, v. The Utica Pipe Foundry Company, Respondent. Fourth Department, May 5,1909. Blaster and servant — negligence — injury by heavy flask suspended from crane—safe place to work—when negligence and assumption of risk for jury—act of fellow-servant. Action' against a master to recover for negligence causing the death of an employee. The decedent was employed about an electric crane in a pipe foundry, and was required to place heavy flasks weighing 8,600 pounds on the turntable as they were lowered by the crane. The decedent, while guiding the flasks to the turntable, was compelled to stand within an iron structure surrounding the latter, .and was crushed between it and a flask, which, being suspended by a chain forty-four feet long, acquired a swinging motion. The decedent had worked for the defendant hut a short time, and had received no special warning or instruction as to the dangers involved. On all the evidence, IIeld, that a nonsuit was error, it being a question for the jury as to whether the master was negligent in failing to furnish a reasonably safe place to work. If the master were negligent in failing.to furnish a safe place to work, aud if the accident would not have happened had that duty been performed, lie cannot escape liability because the decedent’s fellow-servants were negligent in allow ing the flask to catch upon some part of the turntable so as to give it a swinging motion. Under the circumstances the assumption of risk by the decedent was for the jury. Williams, J., dissented. Appeal by the plaintiff, Vincenza Pepe, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 8th day of July, 1908, upon a nonsuit at the close of plaintiff’s evidence on a trial at the Oneida Trial Term, and also from an order entered in said clerk’s office on the same day granting a nonsuit. Frederick G. Fincke, for the appellant. Warnick J. Kernan, for the respondent. [MAJORITY — Kruse, J.:] Kruse, J.: The plaintiff’s intestate, a workman in the defendant’s employ, was so seriously injured while at his work that he died within a few hours after being hurt. It is contended on the plaintiff’s behalf thát the deceased lost his life through the defendant’s negligence. The grounds of negligence are: (1) The failure to furnish a safe place to the deceased in which to do his work. (2) ¡Negligent method used by the defendant in carrying on the work which the deceased assisted in doing. (3) Failure to instruct and warn the deceased of- its dangers. A nonsuit was granted and the plaintiff appeals. The defendant is a domestic corporation, engaged in operating a pipe foundry in the city of Utica, in this State. It uses iron receptacles or moulds in casting, called flasks. Each flask weighs 3,600 pounds, and is lowered by an electric crane into a pit. As it is lowered, the flask and chain to which it is attached sways, so that there is a lateral as well as a downward motion of the flask. It was the duty of the deceased and a fellow-workman to take hold of the flask as it came down, and guide it to its proper place upon a turntable at the bottom of the pit. The turntable is then movéd to the left and another flask put in position in the same manner. At the time of the accident the deceased had hold of a flask and was attempting to guide it into position.' The flask swung' toward him, striking him in the stomach, pushed him against the ironwork back of him, and crushed him. It is necessary to state a little more in detail the structures and appliances- used and method of doing the work. to appreciate the dangerous situation in which the deceased was placed in carrying on this work. The turntable is a steel structure, located in a hole or pit about thirteen feet deep. About three feet from the bottom of the pit, and forming the lower portion of the turntable, there is a construction in the form of a cart wheel, laid flat on the ground, with a felly or rim supported by spokes or radials running to the center. The rim is about four feet wide and forms a shelf or resting place for the flasks. The top or roof of the turntable is -even with the ground or floor of the plant. It is thirty-five feet in diameter, and is supported by fourteen steel columns, or eyebeams, resting on the spokes or radials. The columns are six feet five inches apart, and are placed twenty-one inches from the inside of the rim, toward the center of the turntable, and in every alternate space between the columns there are two eyebeams running diagonally from the top of one column to the bottom of the other, crossing each other in the center of the space. Between the inside of the rim and tire uprights is a wooden platform for the workman to stand upon in doing his work. The flask is a hollow cylinder, weighing 3,600 pounds, as has been stated, about twelve feet seven inches long, two feet ten inches in diameter at the bottom and one foot three inches at the topclosed at the bottom and open at the top ; standing upright when in position and held in place by two small pins projecting from the rim and fitting into a socket or hole through an ear called a chill at the bottom of the flask. The electric crane which lowers the flask is in the upper part of the building. The flask is lowered by means of a chain forty-four feet long, so that the greatest length of the pendulum made by the swinging chain and flask is upwards of fifty feet. The deceased was required to stand upon the narrow wooden platform in doing his work, with this iron construction work immediately back of him. It evidently required care and attention to guide the flask so as to fit it on the pins and properly place the flask on the rim. The turntable was completed about Christmas, 1906, and the first pipe made in February, 1907. The deceased commenced to do the work in question April 4, 1907, and was hurt on the 11th day of April, 1907. During the months of February and March several workmen had left the work, and complaint had been made to the defendant that it was dangerous. The deceased succeeded a workman who had left the defendant’s employ. Up to that time he had never worked at this Work. No special warning or' instructions for his own safety were given him, although the defendant’s foreman testified that the deceased told him he could do the work, and that after he liad gone to work there he stated that lie would like to be there steadily if paid as much money as was paid to the other man. While no one seems to have been injured during the two months immediately preceding the accident, it does appear that at times the flasks would swing in all directions, striking other flasks and some part of the structure while they were being let down.and placed in position. The defendant’s foreman himself testifies that before the accident he had seen flasks vibrate . and strike some portion of the structure. On the afternoon of April eleventh, when the accident occurred) a flask was being lowered into the pit as usual. The clasp or hinge on the side caught some part of the turntable construction above the deceased, causing the lower end of the flask to swing in toward him and push him against the ironwork behind him, injuring him. The defendant contends that two other workmen stationed at the top of the turntable were negligent in not keeping the flask away from the top of the turntable where it caught. But that was a question of fact, and, even if true, does not. necessarily absolve the. defendant from the, charge of negligence, upon its part. The defendant was required to furnish a reasonably safe place to the deceased in doing his work, and to use reasonable care and foresight ■ for his safety in carrying on its work, and not subject him to unnecessary peril and danger. If the defendant was negligent in that regard, and the accident would not have happened if that- duty had been performed, then it is not exonerated from liability, even though the intestate’s fellow-workmen were also negligent, as is claimed by the defendant. Very likely if the work of lowering and placing the flasks in position had been done less expeditiously and more carefully, the accident would not have happened. But the defendant was aware of the way in which the work was being done. Whether the defendant was negligent in permitting a method and practice so dangerous to a workman placed as the deceased was, was a question of fact. If it was necessary to use a method so- hazardous, the defendant was required to take that into account in making the working place, of the deceased reasonably safe. The evidence tends to show that the danger in that regard could. have been materially lessened by omitting the diagonal braces and strengthening the structure in some other way, thus leaving the space between the uprights entirely open. While a workman might still be crushed against the steel columns, such an accident would be less likely to happen, and in this instance it would not have happened, since the deceased was crushed between the moving flask and the construction work between the columns. If, however, it. was impracticable to make this change, and the defendant could not reasonably be called upon to do so for the protection of the workmen, the question still remains whether, under such circumstances, the defendant was reasonably careful in carrying on the work and permitting the practice of lowering and placing the flasks, as the evidence shows was usual and customary, and as was done upon the occasion in question. As was said in the McGovern case: “When directing the performance of work by the servant in a place which may become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, it is his duty to exercise such care, and adopt such precautions as will protect the servant from avoidable danger.” (McGovern v. Central Vermont R. R. Co., 123 N. Y. 280, 288; Palmijiano v. Hyde-McFarlin Co., 126 App. Div. 221, 225; affd., 194 N. Y. 524.) . It is also contended that the deceased assumed the risk. , We think that question, as well as that of the defendant’s negligence, was one of fact: The judgment and order appealed from should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred, except Willia.ms, J., who dissented. Judgment reversed and new trial ordered, with costs to appellant to abide event.