Hempstock v. Lackawanna Iron & Steel Co.

Hiscock, J. (concurring):

I concur in the reversal of the judgment appealed from upon the ground that upon all of the evidence the court was not justified in charging as it did the rule requested by plaintiff’s attorney, “ that the moment the promise to repair (the bracket in question) was given them, the assumption of the risk was removed for a reasonable time.”

Evidence was given on behalf of plaintiff tending to show a report *339of the defect in question to two different employees of the defendant, namely, one Haley and one Stoeckel. Both of these employees denied the conversations imputed to them of notice and a promise to repair. Haley wafe a superintendent or general foreman and, therefore, presumably invested with extensive authority and action by which to bind the defendant. The charge of the learned court upon this subject at folios 358 and 359 was not based upon anything which the jury might find was said to or by this superintendent, but was based entirely upon a finding in favor of plaintiff’s version as to what took place with Stoeckel. Stoeckel merely had charge of a gang of carpenters, and while they were subject to the duty of preparing these scaffolds, it does not seem to me that Stoeckel had any such general authority as authorized him in behalf of defendant to make an agreement to repair which would relieve the plaintiff and subject defendant to an unusual liability in respect to the alleged defective brace.

Further than this, there is not incorporated in the charge permitting plaintiff to'be relieved from assumption of risks on account of a promise to repair, what I regard as the necessary element, that the plaintiff by such promise was induced to continue in the employment of the defendant.

I think that the alleged reply of Stoeckel when spoken to by plaintiff was, to say the least, ambiguous and uncertain enough so that the learned trial judge should have instructed the jury that plaintiff would not be relieved from assumption of risks on account thereof unless he was led and induced by it to continue in his employment. This element seems to be necessary as a basis for the rule invoked by plaintiff in this case. (Rice v. Eureka Paper Co., 174 N. Y. 385.)

Still further, assuming that Stoeckel was authorized to make the promise on behalf of defendant and that he did make it and that on account thereof plaintiff continued in his employment, it seems to be a grave question whether the case at bar would come within the rule laid down in the Rice case, or whether within the authority of those cases involving accidents in the case of simple appliances such as unspiked stepladders, falling bricks, insecure sandbanks and improperly constructed floorings, where it is held that the servant continues the employment at his own risk, notwithstanding the *340promise of the master to repair or improve. (Rice v. Eureka Paper Co., supra, 385, 395, 397.)

Williams, J., concurred.