Phillip McGrath, as Administrator, etc., of Edward R. McGrath, Deceased, Appellant, v. W. H. Hughes Company, Respondent

Phillip McGrath, as Administrator, etc., of Edward R. McGrath, Deceased, Appellant, v. W. H. Hughes Company, Respondent. Third Department, June 29, 1910. master and servant — negligence — death of quarry worker —• evidence — apparent danger. Action to recover for the death of a quarry worker who was hit and killed by a rubbish box which was run on a cable. Evidence examined, and held, that the deceased assumed the risk and was guilty of contributory negligence. Where a certain construction is apparently necessary to the operation of a quarry and there is no evidence that any other quarry thus operated placed guards to warn the workmen of the apparent danger from such construction, • the master has no reason to-.anticipate injury to his employees. , Cochrane, J., dissented.. Appeal by the plaintiff, Phillip McGrath, 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 Washington on the 1st day of October, ,1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Washington Trial Term. • . Timothy I. Dillon, for the appellant. J. B. McCormick, for the respondent. [MAJORITY — Smith, P. J.:] Smith, P. J.: The action is brought to recover damages for the death of the plaintiff’s son, caused as it is claimed by the negligence of the defendant. The defendant was operating slate quarries in the State- • of Vermont.' The slate is taken from a pit and carried up by moans of a cable and cars to the ground above, where it is cut and trimmed. - The pit of the quarry, in question was about sixty feet deep, sixty feet wide and one hundred and forty feet long. The length of the pit was north and south. A cable ran east and west from a point in the bottom of the pit upon the eastern ¡side up over a mast, which was about two hundred and sixty feet west of the western edge of the pit. Upon this cable a rubbish car was run from the pit, loaded with fragments of stone and rubbish, and there was also attached tackle which carried the blocks of slate along the cable. The slate was dropped not far from the edge of the pit at what is called the trimmers’ shanty. The rubbish was carried .further on to the rubbish pile. Plaintiff’s intestate was one of the trimmers located in this trimmers’ shanty. Becoming thirsty he asked a fellow-workman liow to get some water and was told to send his pail down with the rubbish cart and the boy in the pit would fill the pail with water and send it back. There were three cables, called the south, middle and north cable. He sent his pail down the south cable. It did not come back for a time estimated as between twenty minutes and a half hour, and plaintiff’s intestate becoming impatient went to look after it. He went to the engine house, which is situated about fifteen feet north of the middle cable. Coming out from the engine house he walked along the' edge of the pit,, when the boy from the pit, who gave signals to- the engineer-when to draw up the loads and where to place the cars when' they returned, called to him and asked him if he wanted his pail of water. He said “ yes,” and while stepping on the edge of the pit a rubbish box came down the middle cable and knocked him into the pit and killed him. At a point estimated from ten to twenty-five feet west of the edge of the pit where, the plaintiff’s intestate was killed a road runs north and south. The' rubbish box when passing that road gives a leeway of some seven feet. From there to the edge of the pit the cable naturally descends, until at the edge of the pit part of the bank has been worn away by the striking of slate which is . carried upon the tackle up this cable. There is no occasion for men to pass over the ground between the edge of the pit and the roadway. The- evidence is that it was somewhat used as a passageway over all of that ground. There was no regular path, however, which would invite any one out of the regular roadway, from which one could pass to. the engine house. To a person passing over this ground between the roadway and the pit there was always danger of being struck, either with slate being .carried up, or with the rubbish box passing back and forth. Loads were taken up constantly at- spaces of time from three to five minutes. So that the whole situation was perfectly evident to all working around' the quarry and to the intestate himself. The evidence is that from the shanty where lie was working the cable could be seen down into the pit. There is no suggestion how that cable could- be changed. It, was required to pass from this mast at some distance from the pit down into a pit sixty feet in depth and only sixty feet wide. ' It is difficult to see. how it could have- been constructed so as.not'to have run the rubbish car- near to the ground upon the edge of the pit. There would seem to be little occasion for a guard, because of the'evident danger. It was scarcely less evident than pould have-, been a railroad track upon which cars would pass back and forth out of a mine. As long as the cable with'the rubbish car amply, cleared' the' roadway; I can see.no reason for the defendant to apprehend that its workmen would carelessly leave the roadway and go into a place of evident danger.. It is true'that these cars had theretofore knocked down two men, but the situation was then materially different. That was when the roadway was east of the engine house and along the edge of the pit. Plaintiff’s intestate was killed upon the-first day upon which. he was working for the defendant at this quarry. He had the year before,-however, worked considerable time as signal.boy in a quarry about 180 feet north of this place, so that he had full knowledge-of the manner in which the stone was taken up. along the'cable, and full knowledge of the- danger to one standing upon the edge of the pit in the line of thé cable. With this experience, and with the apparent danger,.the learned trial 'judge wap, in hiy judgment, clearly right in holding that he both 'assumed the risk and was guilty of contributory negligence in placing himself iri the line of this cable. Moreover, with this construction apparently necessary in the operation of this slate quarry, and without evidence that at. any other quarry thus operated guards were pdaced to warn men of such an apparent danger, I cap see no reason why in the exercise of reasonable care the defendant should have anticipated injury to its employees. I recommend, therefore, that the judgment be affirmed, with costs. All concurred, except Cocheaste, J., dissenting. . Judgment affirmed,, with costs.