#### Paul Nowak, Appellant, *v.*Delaney Forge and Iron Company, Respondent.

Fourth Department,

November 19, 1913.

Master and servant—injury to employee by steel cable used in moving railroad car — safe place to work — duty of master to formulate rules — when necessity for rules question for jury.

In an action at common law to recover for personal injuries it appeared that the defendant, a manufacturer, was accustomed to move railroad cars about its yard; that on the occasion in question a ear was being moved up a slight grade by a steel cable passed from the car around a revolving drum located within its building; that as the car moved forward the slack of the cable was taken up by an employee at the drum and passed by him to a man standing behind him, by whom it was coiled upon the floor; that the man at the drum, who could not see the car which was being moved, was compelled to stand between the tight cable leading to the car and the slack cable being passed by him to his assistant to be coiled; that the defendant’s employees, as was the custom, had endeavored to retain the car in its position by placing blocks of wood under the wheels instead of setting the brakes, which custom was well known to the defendant; that plaintiff had been assigned the position at the drum; that the car had been moved to its allotted place; that the signal to stop had been given, and plaintiff had loosened the cable and slipped its coils off the drum to the floor at his feet, when the weight of the car cut the blocks in two and the car started down the grade, causing the cable to coil and twist about the floor, one of the coils winding about plaintiff’s leg, severing it above the ankle. The plaintiff had operated the appliance several times, but had received no instructions.

*Held,*that although the doctrine of safe place to work had no application, the jury should have been permitted to determine the necessity and form of a rule governing the operations of the defendant’s employees engaged in holding the car in its position after the removal of the cable, and a judgment dismissing the complaint should be reversed.

Where the situation presented is so obviously dangerous as to suggest the necessity for the formulation of rules to an ordinarily prudent master, it may be left to the jury to infer the necessity of such rules and to determine their form.

Appeal by the plaintiff, Paul Nowak, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 26th day of February, 1913, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial before the *156court and a jury at the Erie Trial Term. Plaintiff also appeals from said judgment as corrected by an order entered in said clerk’s office on the 18th day of March, 1913, striking therefrom the words “upon the merits.”

*W. H. Corcoran,*for the appellant.

*L. H. Vogel*and *Clinton B. Gibbs,*for the respondent.

Lambert, J.:

Defendant is engaged in a manufacturing business at Buffalo. Plaintiff was injured while in its employ and brings this action to recover for such injuries. The facts involved are as follows:

The business of the defendant required the moving about its yard of railroad cars, and on the occasion in question it was necessary to bring a car up a slight grade toward and into the buildings of defendant. The movement was accomplished, as it had been customarily, by a steel cable passed from the car and around a revolving drum or niggerhead located within the shop building. The cable was given four or five turns around such drum, and a man stationed thereat, by hauling the loose end of the cable taut, was enabled to move the car, through the friction developed by the revolving drum, upon the cable. The forward movement of the car could be stopped by merely loosening the free end of the cable. As the car moved forward the slack of the cable was taken up by the man at the drum and passed by him to a man standing in his rear and by this second employee coiled upon the floor. By the arrangement of these various appliances the man at the drum was compelled to stand between the tight cable leading to the car and the slack cable being passed by him to his assistant to be coiled.

The drum had a flange upon but one end, and the custom prevailed that when the car had reached its allotted position the man at the drum was notified by signal and immediately stopped its forward progress by loosening the free end of the cable, thus leaving the drum to revolve freely within the loosened turns of the cable about it. It was then his duty to slide all the turns of the cable off the end of the drum. The cable was nearly an inch thick, and its weight was such that its *157removal from the drum necessitated its deposit upon the floor at the feet of the man operating the drum. Such operations had heen carried on in this manner for some years and with the full knowledge and acquiescence of the defendant.

Upon the occasion of the accident plaintiff was assigned the position at the drum, to assist in placing a car. From his station thereat he could not see the car being moved. He had operated this appliance theretofore upon a few occasions and he had no instructions, other than as above indicated.

The car in question was moved to its allotted place and plaintiff was given the signal to stop. He then loosed the cable and slipped its coils off the drum to the floor at his feet. Meanwhile other employees, outside the building, had endeavored to retain such car in its position by placing blocks of wood under its wheels, to prevent it returning back down the grade. This custom of maintaining cars in their allotted positions had been followed for several years. No particular blocks were provided, but the employees took such, for their purposes, as they could find about the works. Upon this occasion the weight of the car cut two such blocks in two and the car started back down the grade. The cable not having been detached from it, its progress caused the cable, at the drum, to coil and twist about the floor, where plaintiff was standing, with the result that one of such coils becamp wound about plaintiff’s leg and the weight of the car severed his leg above the ankle.

Defendant has had a judgment of nonsuit, solely upon the ground that there has been a complete failure to establish the negligence of the defendant. From such judgment this appeal is taken.

Upon this appeal every permissible inference is to be resolved in favor of the plaintiff, and our inquiry is limited to the question passed upon by the court below, *i.*e., the negligence of the defendant.

The action is at common law, although the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 81, as amd. by Laws of 1910, chap. 106)* is pleaded and was urged as a ground for recovery and here for reversal. But it is our opinion that the *158Labor Law has no application to the facts involved. Of the other charges of negligence made two only require mention.

It is urged that the doctrine of safe place (so called) has application. That is, that the defendant failed and neglected to provide a reasonably safe place for the plaintiff to perform his work. We cannot agree with such contention, as that doctrine is commonly understood. There is no suggestion of any defect in the appliances provided, nor is there proof that they were not proper appliances for the work to be performed by him. Neither is there any evidence that the doing of the work of drawing up the car, with these appliances, involved any element of danger to plaintiff; at least, there is no evidence of such in connection with this particular accident. The operation involved danger, and plaintiff received his injury solely by reason of the failure to keep the car in its position to which it had been drawn. It was not the pulling of the car up the grade that caused the injury. It was its return downwards and the attendant backlash of the cable. With the car held, where placed, the accident could not have happened. It cannot be said then that this was an unsafe place for the plaintiff to work.

The other theory advanced is that of lack of rules governing the operations of the men engaged in holding the car in its position. In its ultimate analysis, this theory grades into that of the safety of the place, to some extent, as will be seen.

The necessity for rules governing the operations of one employee, when his work affects another’s safety, has been stated to arise when, with all proper and sufficient appliances at hand, a method of doing the work has developed which unnecessarily imperils the safety of others properly engaged in the performance of their duties, and such dangerous practice has come to the attention of the master. It then becomes his duty to protect such imperiled employees by the promulgation and enforcement of rules and regulations such as will afford to them all the protection possible from reasonable effort of the master in such particulars. *(Doing*v. *N. Y., O. & W. R. Co.,*151 N. Y. 579; *Dowd*v. *N. Y., O. & W. R. Co.,*170 id. 459; *O’Brien*v. *Buffalo Furnace Co.,*183 id. 317; *Greif*v. *B., L. & R. R. Co.,*205 id. 239, 251.)

*159The cars involved were ordinary railroad cars equipped with brakes. Yet the insecure and inefficient practice of blocking them with pieces of wood selected by the employees seems to have been uniformly adopted in preference to the more obviously safe means of setting the brakes. This custom was well known to the master, and no attempt is shown to remedy it. The inference is also clearly permissible that there was no rule in force regulating this practice.

There is no proof, however, of any rule in force by other concerns likewise engaged nor was any particular rule suggested as being required. Under such circumstances there would ordinarily be presented no question for a jury. But there is a class of cases where, even without such proof, a jury may be left to infer the necessity of such a rule and to determine in that connection what rule was required. Those are the instances where the situation presented is so obviously dangerous as to in and of itself suggest the necessity for such a regulation to an ordinarily prudent master. That class of cases is illustrated by *Banchetti*v. *Gorsline & Swan Const. Co.*(152 App. Div. 275), decided by this court. (See, also, *Van Alstine*v. *Standard L., H. & P. Co.,*128 App. Div. 58.)

The sudden backlashing of this cable, attendant upon the sudden slipping of the car back down the grade, was a result to be foreseen by the exercise of ordinary care, and the attendant danger to the operator at the drum, with the cable coiled around his feet and limbs, followed with equal certainty; at least, the jury might well have so found. The failure of the blocking to hold the car was not of infrequent occurrence, and yet this practice had been continued for' years. It would appear to us that this is clearly a case where the jury should have been permitted to determine the necessity for a rule and what rule was required. Until the master had used reasonable diligence to correct this dangerous practice, it cannot be said that it had discharged its full duty to plaintiff. The jury might well have found that the continuance of such practice left the plaintiff surrounded with dangers beyond his control perfectly obvious and easily preventable.

As was said by the court in *O’Brien*v. *Buffalo Furnace Co. (supra):*‘It is the duty of the master to use reasonable *160care to so conduct his business as not to subject servants to unnecessary danger in the prosecution of their work.”

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

*

 Since amd. by Laws of 1913, chap. 286.—[Rep.