Charles A. Peet, Respondent, v. The H. Remington & Son Pulp and Paper Company, Appellant.
Negligence — the closing of openings through which logs are thrown into the grinding room of a pulp room is a detail of the work which may be committed to a servant — extent of the duty of supervision thereof by the master.
In an action to recover damages for personal injuries sustained by the plaintiff while employed in the defendant’s paper mill, it appeared that, after the timber, from which the paper pulp was made, had been sawed into proper lengths in the saw room of the mill, it was thrown into a bin located in the grinding room of the mill and taken from thence to the grinding machines. The grinding room was located at the end of the saw room in a pit excavated nine and a half feet below the floor of the saw room. At the end of the saw room, next to the grinding room, were two doors. There was also an opening in the floor of the saw room just inside these doors, a foot wide and four feet long, which opening, when not in use, was ordinarily covered by a plank.
The plaintiff was employed in the grinding room and on the day of the accident went to work at six o’clock in the evening. At midnight, while he was stooping over the bin in the grinding room, for the purpose of picking up a stick of wood, a block of wood came down Irom above and struck him on the back, injuring him severely. It did' not satisfactorily appear where the block of wood which struck the plaintiff came from, but he testified that after receiving the injuries he went up into the saw room and then discovered that the doors were open.
It was the business of the man who threw the wood from the saw room into the grinding room to open and close the door, and to remove and replace the plank in the floor. One of the plaintiff’s co-employees testified that about half-past five or six o’clock on the night of the accident, he went into the saw room and threw some wood down into the grinding room and that he did not remember whether he left the doors open or closed. So far as appeared, this employee was the last person in the saw room (unless the plaintiff had been there) prior to the accident.
*102It further appeared that it was the duty of the defendant’s superintendent to inspect the mill between four and six o’clock every afternoon, and he testified that on the day of the accident he performed this duty. He was unable to state the exact time of his visit to the saw room, but he stated that, when there, he saw that the doors were closed and that the plank was in its proper place. '
Held, that the closing of the doors and the replacing of the plank were mere details of the work which the defendant might properly commit to its servants, and that if the accident was caused by the failure of the plaintiff’s fellow-servant to perform this duty, the defendant was not responsible;
That the defendant was not guilty of such a failure to perform the duty of inspection incumbent upon it as would render it liable to the plaintiff;
That the duty of inspection resting upon a master is one which must be enforced in a reasonable manner and does not require unceasing and impracticable performance.
Appeal by the defendant, The H. Remington & Son Pulp and Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 29tli day of January, 1902, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 27th day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.
The defendant is a domestic corporation engaged in the manufacture of paper from wood pulp at its mill which is located at Black River in the county of Jefferson in this State.
The mill is a stone building one story in height, 150 feet in length and 50 feet in width. The interior is divided into three parts : A saw room, a grinder room and a machine room. The grinder room is located upon the north side of the mill and in a pit excavated from the rock to the depth of nine and one-half feet below the floor of the saw room.
The pulp manufactured at this mill is made from spruce and balsam timber which is first carried to the saw room where it is sawed into blocks sixteen inches to two feet in length. When the wood is sawed into proper lengths it is thrown into a receptacle at the end of the grinder room next the saw room, holding some five or six cords of sixteen-inch wood, and from this receptacle it is taken to* the grinding machines and ground to a pulp.
At the end of the saw room and next to the grinding room there are double doors, each of which is about two feet in width and ten *103feet in height. These doors open into the saw room and when •closed are fastened with a clasp and staple. Just inside the doors there is an opening in the floor of the saw room a foot in width and four feet long, which is ordinarily covered with a plank about a foot, wide and five or six feet in length, and it is through these two openings that wood is thrown from the saw room into-the grinding room.
The mill ran day and night, and it was the duty of the men •engaged on the grinders to carry the wood from the receptacle into which it had been thrown to the machines, and when the supply was exhausted to go above and throw down more..
The plaintiff Peet entered the defendant’s service about the 15th of April, 1899, and commenced work in what is called the “ wet room, tending screens,” but in about six months he was, at his own request, transferred to the grinder room, where he continued to work until the 14th day of July, 1900. About the nineteenth day of -July, the mill being-short of help, Peet, at the request of the defendían t’s superintendent, resumed work in the grinding room. He •entered upon this service at six o’clock in the evening and continued •to work until about midnight, when, as he was stooping over in the bin to pick up a stick of wood, a block some twelve inches in diameter came down from above, struck him on the back and injured Iiim so seriously that paraplegia ensued, which ultimately completely disabled him.
There was no other person present at the time the plaintiff received 'his injury, and it does not satisfactorily appear just where the block •of wood which struck him came from, but he testified that after receiving his injury he went up into the saw room to throw down more wood, and then discovered that the doors were open, from which circumstance the jury were asked to infer that the block •came from that room.
At the close of the plaintiff’s case a motion for a nonsuit was made by the defendant’s counsel, which the court denied, but in •doing so took occasion to say that it regarded the case as a “ marginal ” one, and one concerning which it entertained serious doubt. To the refusal to nonsuit an exception was duly taken, and the motion was renewed when the evidence was all in, with the same result as before, to which further ruling of the court another exception was likewise taken. The case was thereupon submitted to the *104jury, which, after a lengthy deliberation, rendered a verdict in favor of the plaintiff for $3,000, and from the judgment entered thereon, as well as from an order denying the defendant’s motion for a new trial on the minutes, this appeal is brought.
Subsequent to the entry of the judgment and order appealed from the plaintiff in the action died, and Eliza L. Peet, as administratrix of his estate, was substituted as plaintiff and respondent, and the action has since been continued in her name.
Henry Purcell, for the appellant.
John N. Carlisle, for the respondent.
Adams, P. J. :
We think that the refusal to nonsuit constitutes error which requires a reversal of the judgment and order appealed from.
The action is one of negligence, the particular act complained of,, and'the only one alleged in the plaintiff’s complaint, being that the-defendant, in its relation of master to the plaintiff, was' unmindful of its duty, in that it omitted to provide the latter with a safe and. proper place in which to perform the work required of him. A very careful examination of- the voluminous record in the case fails to disclose any evidence which, in our opinion, will support a verdict based upon this theory. Indeed, the learned trial, court, in-denying the defendant’s motion for a nonsuit, took occasion to say that, “ so far as the place where the plaintiff was injured was concerned, it was reasonably safe, and the master had done his full duty in that regard,” and subsequently, in submitting the case.to the jury, this statement was reiterated in substantially the same language.
The place itself certainly was a reasonably safe one. So far as the evidence discloses there was nothing complex or hazardous, about its construction, its condition or its appurtenances. No one had ever been injured there before, and the plaintiff’s witnesses, Ostrander and Ashcraft, testified that, with the doors in the saw room closed and the hole-in the floor covered, it was impossible for a stick of wood to foil out into the grinding room. What, then, is there in the case which charges the defendant with liability for the accident which befell the respondent’s intestate ?
If we correctly apprehend the contention of .the learned counsel for the respondent, and the theory upon which the case was finally *105submitted to the jury, it amounts to this: That even conceding the “ place ” to have been a reasonably safe one in its original state, it was permitted to become unsafe through the failure of the defendant to close the doors leading into the saw room or to take proper precautions to see that they were closed while Peet was at work in* the grinding room, but we hardly think this contention will find: any support in the law relating to master and servant, as we understand it.
It was testified by both of the witnesses to whom reference has-just been made, and in this respect they were amply corroborated by other evidence in the case, that it was the business of the man-who threw the wood down into the grinding room to open and close-the door and to uncover the hole in the floor and replace the plank when he had finished his labors. This duty, therefore, was but a, mere detail of the work which belonged to the servant, and not. necessarily to the master to perform, and if by reason solely of the-former’s omission to properly perform the same, the place where the-respondent’s intestate was obliged to work was made dangerous,, the master was not chargeable. (Hussey v. Coger, 112 N. Y. 614 ; Smith v. Empire Transportation Co., 89 Hun, 588 ; Foley v. Brooklyn Gas Light Co., 9 App. Div. 91; Ludlow v. Groton, Bridge & Mfg. Co., 11 id. 452.)
Now, we think it satisfactorily appears in the present case that it was the- respondent’s own witness and co-employee, Ashcraft, who-was responsible for the condition of things which changed the* grinding room from a safe to an unsafe place, if any such change can be said to have occurred; for he testified that, just before he quit work, that is, at about half-past five or six o’clock on the night of the accident, he went up into the saw room and threw down-enough wood to enable Peet to run three or four hours, and that although it was his duty to close the doors, he did not remember whether he left them open or closed. So far as appears, this witness was the last person in the saw room prior to the accident, unless,, as is stated by several of the defendant’s witnesses, Peet himself went there during'the night to replenish his wood pile; and the only inference fairly dedueible from all the evidence in the case is that one of these two persons must have left the doors open. Peet insisted that he did not go there until after he received his injury, and as the jury *106¡appear to have accepted his statement as true, it must.be assumed, we think, that the failure to. close the doors was the negligence of .Ashcraft, a fellow-servant, and that consequently within the rule to which we have adverted, no blame for such omission attaches to the .master. Any other assumption to account for the open doors would 'be founded upon conjecture merely, and would be without any probative evidence to sustain it.
But while little effort is made to account for the open doors upon ¡any other reasonable theory, the rule of inspection is invoked, and it is claimed that if the defendant’s superintendent Shufty had properly performed his duty he would have discovered that the •doors had been left open in time to have prevented the accident. It- is true that among the superintendent’s duties was that of going -through the mill between four and six o’clock every afternoon “to -see that everything was all right,”, and he testified that on the day -of the accident he performed this duty. He was unable to state just when he was in the saw room, but he does state that when there he saw that the doors were closed and that the plank was in its proper place, and there is nothing in the case save the fact that the •doors were open when the accident occurred to contradict him. We think, therefore, that it cannot be asserted that there was any. -failure of the duty of inspection without extending the rule beyond reasonable limits; for it must be borne in mind that if Ashcraft left the-doors open he did so just before the time for work in the ¡-saw room ceased, and in view of the circumstances of this case, the nature of the duty omitted by Ashcraft, and the little reason there was to have anticipated any serious consequences to have resulted therefrom, we hardly think it will answer to place the respondent’s right to recover upon the defendant’s omission of its -duty of inspection.
This duty is one which must be enforced in a reasonable manner, ¡and like the obligation of a master to provide a reasonably safe place for his servants to work in, it is one which does not require -unceasing and impracticable performance. (Perry v. Rogers, 157 N. Y. 251.)
There are several exceptions to the charge of the learned court ¡and to its refusal to charge in compliance with the requests, of the •defendant’s counsel, which in our judgment present very serious *107-questions, but inasmuch as we have reached the conclusion upon the merits that the verdict of the jury cannot stand we do not deem it necessary to consider them more particularly.
The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide event, upon questions of law only, ,the facts having been examined and no error found therein.
All concurred.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts Laving been examined and no error found therein.