
    George W. Miller, Respondent, v. Eben Thomas and John G. McCullough, as Receivers of The New York, Lake Erie and Western Railroad Company, Appellants.
    
      Negligence — injuries from coal undermined during the work —risks of the employment — the foreman a co-employee.
    
    While the plaintiff, an employee of the defendants, was, with other employees, engaged, under the immediate direction of a foreman, in shoveling coal from a large pile, the surface of which was frozen, a portion of the coal of the frozen surface, which had been undermined during the progress of the work, fell upon and injured the plaintiff.
    
      Held, that there being no reason to apprehend any danger of injury, when work upon the pile was commenced, and the hazard having arisen from the details of the work done by the plaintiff and his co-employees, the defendants were not guilty of negligence on the ground that they had not furnished the plaintiff with a safe place in which to work;
    
      That it was a risk which the plaintiff assumed upon entering into the employment; (
    That the foreman, go far as related to the service in which the plaintiff was engaged, was a co-employee of the plaintiff.
    Appeal by the defendants, Eben Thomas and another, as receivers of the Hew York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Rockland on the 25tli day of May, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of June, 1896, denying the defendants’ motion for a new trial made upon the minutes.
    
      Henry Bacon, for the appellants.
    
      J. Du, Pratt White, for the respondent.
   Bradley, J.:

The purpose of - the action was to recover damages resulting to the plaintiff from a personal injury alleged to have been occasioned by the negligence of the defendants. The accident occurred on February 18, 1895, on the long pier on the Hudson river, at Piermont, on which, at some prior time, a large quantity of coal had been deposited for shipment. This pile of coal was several hundred feet in length, about fifty feet in width at the bottom, and in height about twelve feet. It had been exposed to rain and snow, and the surface had been frozen. At the time in question, the plaintiff, and other employees, had, for several days, been at work there, shoveling coal from the pile into cars to be taken away. The work was commenced on the north side of the pile and picks were used to get through the frozen crust, and, to some extent, to loosen the coal for the shovel. It having been so taken out at this place in the pile as to leave a projection of about three feet of frozen coal above where the plaintiff was at work with his pick, this suddenly broke away, and a portion of it fell on and severely injured the plaintiff.

The main question is, whether his injury was attributable to the negligence of the defendants. They, at the time, had the control and management of the property and business of the railroad company. The plaintiff was in their service. They were required to use reasonable care in providing suitable and safe places for their employees to do the work which they were called upon to perform. The employees, however, assumed the ordinary hazards incident to the service, in which were included such as were obvious and the consequences of the negligence of their co-employees. When the plaintiff «and those engaged with him commenced to work upon the pile of coal, there was nothing apparently or inherently dangerous in the place or nature of the service to charge, the defendants with negligence for setting men at work there. Later, however, in the work, as it progressed and in the course of it, a condition was produced which was dangerous to one exposed as was the plaintiff when he received his injury. It is not claimed that there» was any want of competency in any of the workmen; but it is urged that when the projection of frozen coal was produced by the removal of coal beneath it, the place where the plaintiff was engaged was not such, in point of safety, as the defendants were required to furnish him for the service. Many cases are cited on the subject, but in the view taken of the present case they have no essential application to it, because, as may be observed, when the plaintiff and his co-employees went to work on this pile of coal, there was no occasion to apprehend any danger of injury in the service, and whatever hazard followed arose from the manner in which the work was done, and, so far as the place became unsafe, it resulted in the detail of the work from the method of doing it by the plaintiff and his co-employees. In such case the consequences come within the hazard assumed by them. (Hussey v. Coger, 112 N. Y. 614 ; Filbert v. D. & H. C. Co., 121 id. 207; McCampbell v. Cunard S. Co., 144 id. 552; Smith v. Empire T. Co., 89 Hun, 588.) This work was under the immediate direction of one McDowell, who was the foreman. So far as his duties had the nature of those with the performance of which the master was charged he was the alter ego of the defendants. In such relation he hired men to work on the pier. But so far as related to the service in which the men at work there were engaged he does not appear to have been other than their co-employee, although the manner of proceeding with the work was committed by the defendants to him. (Loughlin v. The State, 105 N. Y. 159 ; Cullen v. Norton, 126 id. 1.) The rule of distinction between a person in that relation and one who represents the master is well defined where the service is limited and not that of general supervision; then the representative character of his act is dependent upon the nature and purpose of it.

In the Sheehan Case (91 N. Y. 332); Dana Case (92 id. 639), and Dcmkins Oase (142 id. 416), to which our attention is called, it was held that the duties of a dispatcher, in receiving and communicating orders relating to the running of trains, were those devolved upon the master, and, therefore, the railroad companies were chargeable to their employees for the injurious consequences of the negligence of the dispatchers. In the Pantzar Case (99 N. Y. 368) the general management and control of the industrial enterprise was intrusted to the superintendent, who, as such, fully represented the master and stood in his place. And in that case there was an unsafe condition, dangerous to the plaintiff, where he was put to work and not visible to him. It resulted in his personal in jury, chargeable to the negligence of the defendant. In the McGovern Case (123 N. Y. 280) and the Buckley Case (17 N. Y. St. Repr. 436; 117 N. Y. 645) the places of service were unsafe when the employees were put to work, and by the exercise of reasonable care on the part of the defendants the injuries which followed might have been avoided.

Our attention is called to Doing v. N. Y., Ontario & W. Ry. Co. (151 N. Y. 579). The ground on which it was held that the defendant may have been chargeable for the consequences of an injury to its employee is that the nature of the business done in its workshop and the manner in which it was conducted by those engaged there were such as to require the defendant to provide for their safety suitable rules and regulations to be observed there, and that its fault was in the failure to furnish them. That case has no necessary application to the one at bar. The overhanging section of frozen coal which caused the calamity was an obvious condition, and that it might fall was within reasonable apprehension. It may be deemed to have been a menace which the foreman should not have permitted. And whether by work on the top of the pile, by his direction or without it, the accident was caused is not important for the purposes of the result, since the foreman was the co-employee of the plaintiff in the service.

In view of the principles applicable to this class of cases there seems to be no support in the evidence for the charge that the plaintiff’s injury was caused by the negligence of the defendants.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

All concurred.

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