
    Charles Pinsdorf, an Infant, by Minnie Pinsdorf, His Guardian ad Litem, Appellant, v. E. L. Kellogg & Company, Respondent.
    
      Negligence—Labor Lem-—removal of a guardrail from a machine by a foreman— liability of the mastei' to an employee for an injury, resulting therefrom.
    
    Section 81 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, ehap. 192), which provides that ‘ All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery, of every description, shall be properly guarded. No person shall remove or make ineffective any safeguard around or attached to machinery, vats or pans, while the same are in use, unless for the purpose of immediately making repairs thereto, and all such safeguards so removed shall be promptly replaced,” imposes a duty upon an • employer, which he cannot evade by employing foremen or overseers to take charge of the machinery upon which his employees are at work.
    Where, therefore, a foreman having. Charge of machinery removes a gu’ardrail from a. machine for the purpose of repairing the machine, and after completing such repairs neglects to replace the guardrail, .and about an hour and . a half later an employee, who is not cognizant of the removal of the guardrail, is injured in consequence of the absence thereof, the failure of the foreman to replace the guardrail is not the negligence of a coservant of the injured . employee, but is that of the master.
    Patterson and McLaughlin, JJ., dissented. .
    Appeal by the plaintiff, Charles Pinsdorf, an infant, by 'Minnie. - Pinsdorf, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 31st day of October, 1904, upon '.the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. . ■ .
    
      Gilbert R. Call, for the appellant.
    
      William L. Stone, Jr., for the respondent.
   Ingraham, J.:

The plaintiff, seventeen years of age, had been, in the employ of the defendant for two and a half years prior to Friday, the. 13tb day of December, 1901, his duty being to supply the defendant’s presses " with paper. On that day he left the defendant’s place of business about two o’clock" to go to St. Yin cent’s Hospital to have an injured finger dressed^ returning to his employer’s place of business about ■half-past three o’clock. After his return he was requested to get some paper to be used on the presses at work for the defendant. It seems that this paper was kept on a platform or loft, access to which was obtained either by climbing upon one of the presses - or by a ladder. During the week before the accident the way to this loft or platform by thé ladder had been blocked by bags that were placed there, so that the only method of getting the paper was to climb up on one of the presses, whereupon the plaintiff climbed up on a press. The machinery upon this press was usually protected by a guardrail. There was no light, and the plaintiff’s foot was caught in the machinery and he was severely injured. The machinery in the defendant’s factory seems to have been in charge of a foreman named Ire, who employed and discharged the workmen and had charge of the machinery and premises. The plaintiff testified that on former occasions when he tried to get paper and found the way by the ladder blocked, this foreman had told him to go up on the press; that he had been in the habit of going on the press to get this paper and that the foreman had been present when he did so; that when The plaintiff climbed up on it he saw that it was in motion; that the guardrail was provided to prevent anything from getting onto the bed of the press, or from being injured by it; that the witness saw that this rail was on the press before he left to go to the hospital; that prior to the accident, when he had gone up on this press to get paper, he had placed his foot on the top of the guardrail, and he could do that without danger of injury if the guardrail was there; that no one called his attention to the fact that this guardrail had been removed and he had no knowledge of it. Upon cross-examination the plaintiff testified that the foreman had told him two or three times to go to this platform where the paper was kept by stepping on the presses; that the foreman never warned him not to go by the way of the presses, and never told him that it was dangerous; that as he was putting his foot on the step to get on. the press he noticed that an electric light was turned out; that this light had been always lighted when the guardrail was removed; that this guardrail was only removed when the machinery was being repaired; that when the machine was stopped for the purpose of making repairs the light would be lighted, but when the machine was started up the light would be turned out; that the machine was perfectly safe with the guardrail on ; that it was the custom of the business to get this paper by climbing up upon this machine when the way by the ladder was blocked, and all the feeders and the foreman himself went up the same way; and that the other machine by which the plaintiff could get to this loft was also in motion at the time of the accident. It also appeared that at the time this accident happened the foreman was in the room about ten or fifteen feet away from the press; that some time prior to the accident the workman in charge of this‘press upon which the plaintiff was injured, called the attention of the foreman to the fact that the register rack on the press was out of order, and that • the foreman came over, removed the guard and fixed the rack, went away without replacing the guard, leaving it on the floor, and told the workman to toy the press and the man went on and pushéd it out a,t top speed; that this guard was removed after one o’cloqk and was off about two hours prior to the accident; that it took about twenty minutes to fix the press and during that time the light was turned on ; and that at this, end of the basement it was quite dark, so that without light it was impossible to see whether the guardrail was on or not.

At the end of the- plaintiff’s testimony the complaint was dismissed upon the ground that the act of the foreman in removing the guard was the act of a fellow-servant of the plaintiff for which the deféndant was not liable. , ■

Section 81 of the Labor Law (Laws of 1897,- chap. 415, as ■ amd. by ; Laws of 1899, chap. 192) provides ' as follows: “All vats, pans, saws, planers, cogs, gearing, belting, shafting, set" screws and machinery,' of every description, shall. be properly guarded. FTo person shall remove or make ineffective any safeguard around or attached to machinery, vats or pans, while the same are in ,uséj unless for - the. purpose of immediately making repairs thereto, and all such safeguards • so removed shall be promptly replaced;” This statute imposes a duty upon the employer,' a duty which he cannot evade by employing foremen Or overseers to take his place. in charge -of machinery upon which his employees are at work.' Generally, it is the master’s duty to furnish his employees with a safe place to work and with proper and safe appliances for doing the work; and the statute- having expressly provided that the-machinery shall be guarded and tha-t guards when removed shall be promptly replaced, there is imposed an affirmative duty upon the employer, a violation'of which is evidence of negligence. As was said, by the Court of Appeals in Glens Falls Portland Cement Co. v. Travelers' Ins. Co. (162 N. Y. 403) in construing section 8 of the Factory Act (Laws of 1886, chap. 409, as amd. by Laws of 1892, chap. 673), which contained substantially the same provisions as found in section ;81- of the Labor Law' (siipra): “ The manifest purpose of the enactment was doubtless to give more force to the existing rule that masters should afford a reasonably safe place in which their servants are called upon to work.” This duty devolving upon the master and he having provided a foreman and placed him in charge of the machinery, a violation of the duty by the foreman would, I think, be clearly a violation of the duty of the master. In Koehler v. New York Steam Co. (183 N. Y. 1) the Court of Appeals held that the duty of inspection is the master’s duty and one that cannot be delegated so as to relieve him from responsibility, and that if a servant performs this duty he is the alter ego of the master and for any negligence in its discharge the latter is liable. The same principle would apply to the duty imposed by the provisions of the Labor Law to which attention has been called. In the performance óf his duty the foreman removed this guardrail from this machine to repair the machine. He repaired the machine and directed the persons in charge of it to proceed with their work without replacing the guard; and there is evidence that the machine in this condition was left unguarded for a considerable period of time. A failure to promptly replace this guard was the immediate and proximate cause of the accident, and this failure to replace this guard was a violation of the obligation imposed by the statute upon the master, and for the negligence of his foreman in performing this duty the master was liable.

Klein v. Garvey (94 App. Div. 183) I think is an authority for this view. In that case the late presiding justice, speaking for this court, after calling attention to section 81 of the Labor Law (as amd. supra), said: The proper guard was provided for use on this machine, and its use was dispensed, with pursuant to the instructions of the defendant, if we are to believe the plaintiff’^ evidence. * * * It was the duty of the defendant, not only not to direct the use of the machine without its being properly guarded, but to forbid its use in such a condition.” I do not think that Vogel v. American Bridge Co. (180 N. Y. 373) is at all decisive of this question. In that case'the accident was not caused by a failure of the defendant to perform a duty imposed upon it, but was caused by the breaking of a rope with which the employees, including the plaintiff, were shifting a large iron truss. The foreman there expressed his opinion that this particular rope was strong enough — an opinion which was characterized by the Court of Appeals as “ error of judgment.” In that case it was said : “ In all the cases where the question of the master’s liability in this form has arisen, it is made to depend upon whether the act omitted or neglectfully performed by the alter ego, was one which might be. regarded as within the personal duty of the master, or whether it was some act in the line of a mere servant’s duty. If, in the exercise of judgment by the master’s representative, he omits to do something, which has been • foreseen and provided against by the master, the latter should not be regarded as chargeable with a responsibility for the result,” the distinction being that when the master has performed his duty to . the servant, an act of an employee, no matter what his rank,- is the act of a fellow-servant; but when-the negligence is in the performance of a duty imposed upon the master by one employed by , the master, the master is liable for such negligence when it causes an injury to one of his employees! In other words, a master cannot escape liability for the neglect of a duty which the law imposes upon him by providing a servant to perform that duty. The -two late decisions of the Court of Appeals in Vogel v. American Bridge Co. (supra) and Koehler v. New York Steam Co. (supra) illustrate this distinction.

Here, as I view it, the accident was caused by a failure of the master’s representative to comply with this provision of the statute which imposes a duty upon the master to promply replace this guardrail, and it was a failure to perform the master’s duty in that respect which has resulted in this injury, and-for that negligence, I think, the master is responsible.

It follows that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Brien, P. J., and Laughlin, J., concurred; Patterson and McLaughlin, JJ., dissented. ' ,

McLaughlin, J. (dissenting):

I dissent upon the ground that "this case cannot be distinguished in principle from Vogel v. American Bridge Co. (180 N. Y. 373).

Judgment reversed, new trial ordered, costs to appellant to abide' event. • ' .  