Citrone v. O'Rourke Engineering Construction Co.

Gaynor, J.:

■ The plaintiff was set to work in a trench. He reported that the place was unsafe from stones above in the side of the trench that might fall on him. The trench was sheathed and braced up on each side, but not all the way to the top, and the stones were above the sheathing. The foreman in charge of the work and who employed the plaintiff told him “ to go to work and after dinner he would fix it.” This happened at about 8:30 o’clock' in the forenoon. The plaintiff went to work, induced by the promise, and the stones fell on him at 10 : 30 o’clock.

The master is of course always free to make an agreement with the servant relieving him permanently or for only a limited time of the risk of being hurt in his work, and thereby assuming it himself, whether such risk be inherent or from a defective condition "of working place or appliance. It is upon this freedom of contract that the assumption of risk by the master always rests (Dowd v. N. Y., O. & W. R. Co., 170 N. Y. 459). The question in a given case therefore is simply whether such an agreement express or implied was made. It is now settled in this State by the recent case of Rice v. Eureka Paper Co. (174 N. Y. 385) that a mere promise by the master to the servant -to repair a dangerous defect reported to him by the latter, made to induce and which does induce the servant to continue at work, amounts in law to an agreement relieving the servant from the risk and of assumption thereof by-the master for the period during which the .agreement continues. In the pres'ent case there is inore in express words, viz., a promise to repair coupled with a request to continue work, and that there was. enough to constitute such an agreement as matter of law is therefore not open to dispute. The rule laid down in Laning v. N. Y. C. R. R. Co. (49 N. Y. 521), and so long followed by the trial judges, has been superseded by the Ride case. The master’s inducing promise to repair, from being only a fapt .to be considered by the jury on the question of fact whether the Servant assumed the risk of the defect (or was guilty, of contributory negligence, as it is otherwise expressed), by continuing at work, as was decided in the Zoning case and in such other leading cases as Counsell v. Hall (145 Mass. 470), has evolved in this State into "a contract relieving the servant of the risk and of assumption thereof by the. master as matter of law.

The contention is, however, that although an agreement zof assumption of risk was made by the master, it did not begin to run until after dinner—that if did,not cover the period between the making of it and dinner time. I do not see how this can prevail. The very contrary'seems to me inherent in the. words, and purpose of the agreement, viz., the agreement was intended tó cover the ■ period during which the servant was tó;be induced to work by it, ■ viz., from the time of making it Until dinner time. The purpose :of the piaster-was to induce the servant to resume work until dinner time, and he effected it by promising to repair the- d'efect after dinner. The servant was' not to be subjected to the risk after -dinner,.for it was then' to be removed, and therefore the agreément could not be intended to cover that time, but, on the' contrary, the time that the servant was to undergo the risk.

In the. Rice case thé promise was made at the close oil Saturday to do the repairs “-the forepart of the next week,” which the Court of Appeals- construed to mean during the-fore half of next week-, i. e., not later than Wednesday; and it was held as matter of . law that the agreement went into' effect' at once- and that the defendant assumed the risk for Monday, Tuesday and Wednesday, and was liable 'for-the plaintiff’s hurt-oh Wednesday. If the promise be to do the repairs presently, or within no fixed time, the'agreemerit subsists for a reasonable time only, but if the parties fix the period Of its duration, it of course 'applies during'that period-. If the master- had said, “ Go to work and I will fix it,” jfche agreement would coucededly have begun to run immediately, and would have meant that within a reasonable time the danger would be removed, but because the master said, “ Go to work and after dinner I will fix it,” it is claimed that the agreement did not begin to run at all; that the agreement was not to begin to run until dinner time, and then only if the defendant failed to keep its promise. In the Rice case the master said in substance, “ Go to work and I will fix it some time in the fore-half of next Week ” (i. e., not later than on Wednesday), and the agreement was held to begin to run immediately and continue until Thursday. It was not that the danger would be removed immediately, but at some time within three days. Why then did it begin to run immediately if the 'present one" did not ?. Why in the period intermediate the making of the agreement and the time limited for the making of the repairs (Wednesday) did the agreement apply there if not here? Can a single reason be assigned ? The-law is not complex but simple and consistent, and it is always a misfortune -to make it appear otherwise. We need in this instance to make a simple working rule for trial judges and jurors.

The learned trial judge charged the jury that unless the defendant made the promise to repair they should render a verdict for the defendant; but that if the promise was made the defendant assumed the risk and the plaintiff: was. relieved of it “ until the expiration of a reasonable time after that promise had been made; ” and he left it to the jury to say whether such reasonable time had elapsed before the accident happened, in which case he instructed them the plaintiff: had assumed the risk and the defendant was relieved of it, and the verdict should be for tbe defendant.' This was an error prejudicial to the plaintiff:, and not to the defendant, although the defendant excepted to it, for thére was no question in the case of a reasonable time for the performance of the promise. . On the contrary, the parties fixed the time by agreement. The jury, should therefore have been charged as matter of law that the defendant was liable if the promise was made. When such a promise is made to do the repairs presently, or without fixing a time, the cases hold that it continues only for a reasonable time, after which (it not being kept) the risk goes back to the servant if he continues at work. The learned trial judge evidently had this rule in mind in charging the jury, and did not perceive for the moment that it had nothing to do with'cases where the time is fixed by the agreement,

The judgment should be affirmed.

Hooker and Hiller, JJ., concurred ; Jenks, J., read for reversal, with whom Rich, J., concurred. .