
    GEORGE FILBERT, Respondent v. THE PRESIDENT, &c., OF THE DELAWARE & HUDSON CANAL CO., Appellants.
    
      Personal injuries sustained through negligence, Damages for same.
    
    The work assigned by defendants to plaintiff, was the uncoupling of cars while they were slowly moving upon the rails. At the time the injury was sustained, he was proceeding to uncouple cars, in such manner as he had been previously instructed. He stepped with his left foot upon the track, raising his left arm to uncouple the cars. His left foot fell into a hole between the rails, which caused his body to fall until his left arm was caught between the bumpers of the cars, and as thus caught, he moved or was moved some distance beyond this hole, while the cars were moving, and the injury was sustained, resulting in the loss of the arm of plaintiff.
    The negligence of defendants in the premises was predicated and claimed on the ground, that it was their duty to keep the place where the hole was, in such state and condition that the plaintiff in the course of the work and duty assigned to him, would not fall therein.
    
      Held, that it was the duty of the defendants to have a covering over the hole or pit, that would protect the servant who was working above the same. At the least it was for the jury to say whether the defendants had used due diligence in respect of their duty to provide a safe cover or covering over this hole or pit. It was not a risk of the plaintiff’s employment, which he took upon himself when he chose to enter the employment of the defendants. The plaintiff had no reason to believe that the track was not safe at all times when he was called to step upon it in the performance of his work, or that there was any risk or danger to him in doing so. Whether the plaintiff was guilty of contributory negligence, was a question for the determination of the jury.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided October 25, 1888.
    Appeal from judgment fof $5,367.07 entered upon the verdict of a jury, for the plaintiff, and from an order denying a motion for a new.trial.
    The facts appear in the opinion.
    . Edwin Young, attorney, and Matthew Hale and Frank E. Smith of counsel for appellants, argued:—
    I. No negligence on the part of defendant, causing or contributing to plaintiff’s injury, was proved; if there was any such negligence, other than that of plaintiff, it was that of his fellow-servants for which the defendant is not liable. 1. The general rule, established by a vast number of decisions, that a master is not liable to his servants for the injuries occasioned by the negligence or want of care of fellow-servants, who have not been negligently appointed or retained in the service, will not be questioned. Wright v. N. Y. C. R. Co., 25 N. Y. 562; Malone v. Hathaway, 64 Ib. 5, 8. 2. Nor do we question the qualification oí this rule that where the master fails to furnish proper, perfect and adequate machinery or other materials and appliances necessary for the proposed work, or neglects to employ skillful and competent fellow-servants or tó use due and reasonable care to that end, he is liable to a servant for an injury occasioned by such neglect. Laning v. N. Y. C. R. Co., 49 N. Y 521; Flike v. B. & A. R. Co., 53 Ib. 549. This qualification is well stated by the late Judge Allen in the following language: “ When the middleman or superior servant employes and discharges the subalterns, and the principal withdraws from the management of the business, or the business is of such a nature that it is necessarily committed to agents, as in the case of corporations, the principal is liable for the neglects and omissions of duty of the one charged with the selection of other servants in employing and selecting such servants and in the general conduct of the business committed to his care. This is the extent and effect of the decision in Laning v. New York Central Railroad Co., 49 N. Y. 521, which I think has been greatly misapprehended. It was not intended in that case to disturb the general rule of law, limiting the liability of masters to their servants for injuries received while in their service, or to enunciate any new proposition......Flike v. Boston and Albany Railroad Company, 53 N. Y. 549, was decided upon the same general principle that the “head conductor,” whose duty it was to make up the morning trains and employ and station the brakeman, was pro hao vice the general agent and representative of the corporation for whose acts and neglects the latter was responsible, and that his neglect to furnish bralcemen sufficient in number and capacity for the service, was the neglect of the defendant to perform a duty which the law cast upon it. The dissents in that case as well as that in Laning’s Case were not to the principle, but to the application of it to the facts and circumstances of those cases and the position of the employees for whose faults the employer was charged.” Malone v. Hathaway, 64 N. Y. 5, 9, 10, 11. 3. The learned judge below was correct in holding that the question involved did not depend on the question “whether the co-servant ivas an overseer or a high director of the work being done; the question is as to the nature of the work itself; if it were work that the defendant should have done and were responsible for doing, then the act of this servant, whether he be high or low, was the act of the defendant himself.” This was substantially the doctrine which has been repeatedly laid down by the court of appeals. In Crispin v. Babbitt, 81 N. Y. 516, the law is laid down as follows:
    “The liability of a master for an injury to an employee, occasioned by the negligence of another employee, does not depend on the grade or rank of the latter, but upon the character of the act, in the performance of which the injury arises.
    “If the act is one pertaining to the duty the master owes to his servants, he is responsible to them for the manner of its performance; but if the act is one pertaining only to the duty of an operative, the employee performing it, whatever his rank or title, is a mere servant and the master is not liable to a fellow-servant for its improper performance.” See, also, McCosker v. L. I. R Co., 84 N. Y. 77; Slater v. Jewett, 85 Ib. 61; Brick v. Rochester, etc., R. R. Co., 98 Ib. 211; Neubauer v. N. Y., L. E. and W. R. R. Co., 101 Ib. 608.; Loughlin v. State of N. Y., 105 Ib. 159. 4. The facts in this case, assuming the truth of the testimony of the plaintiff and his one witness (although overwhelmingly contradicted, as will be seen, not only by the testimony of the numerous witnesses called by defendant but by facts as to which there can be no dispute), show that the case comes plainly within the principle exempting the master from liability.
    
      
      Baldwin & BlacJcmar, attorneys, and Abel JE. Blaelemar of counsel for respondent, argued:—
    I. That there was evidence of the defendant’s negligence.
    Upon the facts in the case there can be no doubt of the liability of the defendant, unless there is something in the relation of master and servant, existing between the defendant and plaintiff, which operates to relieve the defendant from liability. We understand that the defendant claims that the rule exempting a master from liability to one servant for the negligent acts of a fellow-servant- in the course of the same general employment, operates to relieve the defendant from liability in the case. This rule originated in Priestly v. Fowler, 4 M. & W., was amplified and applied in Farwell v. The Boston & A. R. R. Co., 4 Met. 49, and was adopted in this state in Coon v. R. R. Co., 1 Seld. 492. It was held to be a branch of the rule that a servant assumes all the ordinary risks of his business. Sherman v. R. R. Co., 17 N. Y. 153. Soon after the introduction of this rule into law, an exception, or rather, a collateral law was introduced. This was that the servant did not assume the risk of injuries from negligence in the performance of the master’s duty, no matter to whom the performance of such duty was delegated; and that it was the duty of the.master to “exercise care and prudence, that those in his employment be not exposed to unreasonable risks and dangers.” Keegan v. R. R. Co., 8 N. Y. 175; Ryan v. Fowler, 24 Ib. 410; Flike v. B. & A. R. R. Co., 53 Ib. 549; Kirkpatrick v. R. R. Co., 79 Ib. 240; Fuller v. Jewett, 80 Ib. 46; Pantzar v. Tilley F. Co., 99 Ib. 368; Benzing v. Steinway, 101 Ib. 547.
    II. The true test of defendant’s liability is whether or not there is any default in any duty which the master owes the servant, and we are not to look to the authority with which the particular person who is guilty of the negligent act is clothed, but only to the respect wherein he has been negligent. Crispin v. Babbitt, 81 N. Y. 516. And if there is negligence in the performance of the master’s duty, the master is not released from liability because the negligence of a fellow-servant concurred with the master in bringing about the injury. Ellis v. N. Y., L. E. & R. R. Co., 95 N. Y. 546; Flike v. R. R. Co., 53 Ib. 549; Cone v. R. R. Co. 81 Ib. 207. It is the master’s duty to keep the premises on which the work is done in a safe condition, or, to put it in another way, to afford the servant a reasonably safe place to do his work. Ryan v. Fowler, 25 N. Y. 410 ; Plank v. R. R. Co., 60 Ib. 607; Deforest v. Jewett, 88 Ib. 264; Pantzar v. T. F. Co., 99 Ib. 368; Benzing v. Steinway, 101 Ib. 547. And also to warn the servant of any element of danger beyond the ordinary risks of the business, which the master knew or should have known of. Davies v. England, 10 Jur. (N. S.) 1235; Baxter v. Roberts, 44 Cal. 187; Homer v. Everett, 91 N. Y. 641; Stark v. McLaren, 10 N. Sess. (Sc.) 3, Series 31. In short, to use due care and prudence to prevent injury to servants. Noyes v. Smith, 28 Vt. 59. It is evident that the rule that a master is not liable to a servant for the negligence of a fellow-servant in the ordinary course of his employment, and that a master is liable for his neglect in furnishing the servant safe facilities for doing business, are but branches of the same general rule, viz.: That the servant assumes all the ordinary risks of his business, but not such risks as the master by the use of ordinary care can shield him from. Abel v. Del. & Hud. Canal Co., 103 N. Y. 581. The master’s duty is co-extensive with his ability to perform it. No amount of care on the part of a master can protect a servant from the results of the negligence of fellow-servants. This the servant knows as well as the master, and therefore in entering the service he assumes this risk which is inseparable from it. On the other hand, a sufficient amount of care on the part of the master may keep the premises on which the servant does his work in a reasonably safe condition.' This is accomplished by proper inspection and supervision, which is the peculiar province of the master, therefore the servant does not assume this risk.
   By the Court.—Sedgwick, Ch. J.

The work assigned by the defendants to the plaintiff to be done for them, was uncoupling cars while they were slowly moving upon the rails. At the time of the occurrence, in question, he was proceeding to uncouple in a manner in which he has been previously instructed. He stepped with his left foot upon the track, raising his left arm to uncouple the cars. His left foot fell into a hole between the rails, which .caused his body to fall until his left arm was caught between the bumpers of the cars, and as thus caught he moved some distance beyond the hole, while the cars were moving.

The negligence of defendants is predicated on their omission of duty to keep the place where the hole was, in such a state that the plaintiff, in the course of the work given to him, would not fall in it. The hole, as it was called, was at some part of the top of a regularly made pit, in which a wheel and ropes attached to it were placed, to manage cars upon the track above. In the usual condition of affairs, a set of planks completely covered the hole, so that it was entirely safe to workmen walking over it. These planks were taken up occasionally, only and for specific purposes connected with repairing the wheel and ropes. In such instances they were pried up by a crow-bar or a like tool, and afterwards replaced. On the day before the accident the planks had been removed, and it may be assumed had been replaced, with the exception of two, which had been injured in their removal, and in their stead two others were used. The plaintiff knew of the uncovering, but the jury were not bound to find that he knew of the manner of the re-covering or that there was any imperfection in it.

Upon the record of plaintiff’s testimony here, it was competent for the jury to find that he did not mean to testify that the pit was entirely uncovered, and that the hole that his foot fell in was the uncovered pit. They might find that the hole he meant, was an imperfection in the covering, made by a short plank or one that was loose. And here it may be said that the testimony of the numerous witnesses for the defense, who said that the hole was covered, or was not uncovered, did not oblige the jury to find that their evidence was conclusive—that there was no imperfection in the covering in which the plaintiff’s foot might have fallen.

I know that the complaint charges that the hole was open and uncovered, and those words were used through the trial, yet the actual issue referred to a space over the pit where the plaintiff’s foot might have fallen, and where he testified it did fall.

I am of opinion that it was the duty of the master, that is the defendants, to have a covering that would protect the* servant in working above the pit. Evidently the method of covering was not of a kind, like a trapdoor of a single piece, that a single motion may lift and return. These were single planks, unconnected with each other, and when they were taken off no cover existed, and the duty of the master returned to the point where it was in the first place, that is, to make the pit safe for the workmen. At the least, it was for the jury to say whether the defendants had used due diligence in respect of their duty to provide a safe cover or covering.

It was not a risk of the plaintiff’s employment which he took if he chose to enter the employment. In Muller v. McKesson, 73 N. Y. 204, a case where a servant was injured on the premises, where he was employed, by a savage dog kept by the master, the court said: What were the risks of his employment here as it respects the dog ? He was informed, it is true, of the nature of the animal, but he was also told that the dog would be kept fastened, and the uniform habit was to notify him when the dog was loose. . . . The most that can be said is that he assumed the risks consequent upon the keeping of a ferocious dog, which was kept fastened except when he was otherwise notified. Beyond this the plaintiff is entitled to the same protection as other persons.” The plaintiff had no reason to believe that the track was not safe at all times when he was called to work upon it, or that there was any risk.

Whether the plaintiff was guilty of contributory negligence was for the jury to determine.

I see no exception which calls for a reversal of the judgment.

Judgment and order affirmed with costs.

Freedman and Tritax, JJ.,concurred.  