Wells v. C. A. Agar & Co.

176 A.D. 495, 162 N.Y.S. 1078, 1917 N.Y. App. Div. LEXIS 4737

Opinions

Putnam, J.:

This action was for personal injuries from falling over the handle of a truck on March 13, 1914, at about eleven A. M. No question is made as to lighting the passageway. Plaintiff’s notice under the Labor Law

Footnotes

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* stated that “I was caused to trip and fall over the handle of a certain hand truck which you had negligently and unlawfully placed or permitted to stand in said passageway so that the same constituted a dangerous and unlawful obstruction, and a defect in your ways, works, machinery and plant, and a dangerous place in which to work.” This truck handle had projected out into the aisle for three hours. Such an obstruction, though temporary, the statute has not put on a parity with the changed condition by which a way is made slippery by snow, ice or mud. Under recognized precedents this truck handle is but an obstruction temporarily encroaching on the passageway; like the piece of casting which had fallen from the metal stack out into the roadway in McQiffin v. Palmer’s Shipbuilding & Iron Co. (L. R. ( [1882] 10 Q. B. Div. 5). We are referred tono case since that has held a mere obstruction, negligently placed, a defect in the way or in its condition. So of a large stone temporarily placed on a building staging (Carroll v. Willcutt, 163 Mass. 221), or the act of leaving temporarily uncovered a well hole in a way. Willetts v. Watt & Co., L. R. [1892] 2 Q. B. Div. 92.) How would we treat a box car left standing on a railroad track ? (See Kansas City, Memphis & Birmingham- R. Co. v. Burton, 9Y Ala. 240.) To be a “defect,” I think the foreign object must

have other connection with the way than merely being left in dangerous proximity thereto. Heretofore these cases have fallen under the exception of temporary and transitory risks; not in the ways as such, but arising from a negligent use. (See, as to this class of obstructions, Alger & Slater Emp. Liability, § 14; 5 Labatt Mast. & Serv. [2d ed.] 5181.)

Considering the accepted construction of the word “defect” in England in 1882, and in Massachusetts in 1887, it may fairly be taken as what the New York Legislature intended by its enactment in 1902. (Laws of 1902, chap. 600; now Labor Law, art. 14, as amd. supra.) Furthermore, the word “ defect ” has ho such wide import in other uses of the term. Hence, I am not prepared to broaden the statute in a manner which to me looks like legislation and not interpretation.

I advise that the judgment of dismissal be affirmed, with costs.

Jenks, P. J., and Stapleton, J., concurred; Thomas, J., read for reversal; Carr, J., not voting.

See Consol. Laws, chap. 31 (Laws of 1909, chap. 36), art. 14, as amd. by Laws of 1910, chap, 853.— [Rep.