
    John La Marca, Respondent, v. Atlantic Stevedoring Company, Appellant, Impleaded with Baltimore and Ohio Railroad Company, Defendant.
    First Department,
    December 4, 1914.
    Master and servant— negligence — safe place to work—injury to stevedore while transferring property from lighter to ship —verdict contrary to law as charged.
    Where, in an action against a stevedoring company and a railroad company for injuries alleged to have been sustained by the plaintiff while working for the first company, engaged in loading crates of steel plates from a lighter into a ship, it appeared that after the men had made a gangway by removing some of the crates and slanting them so as to prevent them from falling over, the captain of the lighter, not in the employ of the defendant, in the absence of the plaintiff and his coemployees, stood two of the crates upright, which defendant’s foreman saw but apparently failed to recognize that they presented any danger, and when the men returned to work one of the crates fell down, injuring the plaintiff, the complaint should be dismissed.
    As the court charged the jury that if the accident was caused by the negligent act of the captain of the lighter, the railroad company was liable, but that if the. captain had not interfered with the crates, neither defendant was liable, the verdict exonerating the railroad company and finding the other defendant liable, was contrary to the law as charged. When a master has originally furnished a safe place to work he is not liable if the place be temporarily made unsafe in the progress of the work by the act of coservants or by persons for whose actions he is in no way responsible.
    
      It seems, that if the foreman had himself, in the course of the work, shifted the two crates to a perpendicular position, no liability would have attached to the appellant.
    Appeal by the defendant, Atlantic Stevedoring Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 22d day of October, 1913, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the same day denying appellant’s motion for a new trial made upon the minutes.
    
      John Vernon Bouvier, Jr. [William Montague Geer, Jr., with him on the brief], for the appellant.
    
      Gustavus A. Rogers, for the respondent.
   Scott, J.:

The action is for damages for injuries received by plaintiff while working in appellant’s employ as stevedore, the fault attributed to appellant being that it failed to furnish its servant with a safe place to work. At the time of the accident plaintiff was one of a gang engaged in loading corrugated steel plates from a lighter into a ship. These plates were packed in crates weighing about 500 pounds each and measuring six feet by two and a half or three feet and having a thickness of six inches. They stood on end in double rows, one on top of the other. The first thing the men did was to take out some of the crates in the middle so as to make a place to work in, called in the case a gangway. Then the crates on either side of this gangway fore and aft from it were slightly slanted, apparently to avoid the danger that some of the crates might fall over upon the workmen. After the men had worked for an hour or two a shower of rain came up during which the men desisted from work and left the lighter. While the men. were away some one, identified by some of the witnesses as the captain of the lighter, a person not in the employ of appellant, is said to have upended two of the crates so that they stood up perpendicularly, and they were in this condition when the men resumed work. After they had been at work a little while a crate fell down, striking plaintiff and injuring him. As the men resumed work one Oollis or Kelly, a foreman employed by appellant, who stood on the deck of the ship some distance above the lighter, looked down and observed the perpendicular crates. He apparently failed to recognize that they presented any danger and did nothing.

It is apparent that the appellant furnished, in the first instance, an entirely safe place for the men to work in, and it is equally clear that neither the appellant nor any one for whose action it was responsible did anything to render the place unsafe. So much is not questioned by plaintiff, but it is said that it was negligence for the foreman not to have realized that the shifting of the two crates to a perpendicular position made that unsafe which had theretofore been safe, and not to have taken some steps to obviate the newly-created danger, and this negligence it is sought to impute to appellant, the employer.

This is an attempt to, hold the employer to a much stricter measure of responsibility than the law will justify. Apart from the question whether the foreman can justly be charged with negligence because upon the cursory, almost momentary, glance he had of the changed conditions he did not realize that a dangerous condition had arisen, it is well established that when a master has originally furnished a safe place to work he is not liable if the place be temporarily made unsafe in the progress of the work by the act of coservants or of persons for whose actions the employer is in nowise responsible. (Perry v. Rogers, 157 N. Y. 251; Edgar v. Brooklyn Heights R. R. Co.. 146 App. Div. 541; Kearney v. Hanlien, 149 id. 524.) The master in such a case is not supposed to watch for supervening conditions in the progress of the work in which the workmen are engaged. If his measure of duty has been performed by sending them off to work under right conditions, with an experienced foreman and competent workmen, nothing further was incumbent upon him. (Capasso v. Woolfolk, 163 N. Y. 472.) As was said by the Court of Appeals in Russell v. Lehigh Valley R. R. Co. (188 N. Y. 344): “If the defendant set the men at work under a competent foreman and with suitable appliances, it had performed its duty towards them and the execution of the details of the work could properly be intrusted to the judgment of the foreman. For his negligence, or for his mistakes in judgment, as to such, it could not be made liable for injurious results.” The responsibility of appellant in the case at bar is certainly no greater than it would have been if Oollis, the foreman, had himself, in the course of the work, shifted the two crates to a perpendicular position, and it seems to be clear under the authorities that, if he had done so, no liability would have attached to appellant.

Furthermore the verdict was directly contrary to the law of the case as propounded by the court. The plaintiff’s claim was that the crates had been shifted by the captain of the lighter who was not the servant of appellant, but of the Baltimore and Ohio Railroad Company, a codefendant. The court charged the jury that if the accident was caused by the negligent act of the captain of the lighter, the railroad company was liable, but that if the captain had not interfered with the crates, neither defendant was liable, yet the jury by their verdict exonerated the railroad company, thus finding in effect that its captain had not interfered with the cargo, and cast the appellant in damages which could only have been done on the theory that the captain had so interfered. Upon the whole case the evidence failed to establish the appellant’s liability, and the complaint should have been dismissed.

The judgment and order appealed from should he reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin and Clarke, JJ., concurred; Laughlin, J., concurred on last ground.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.  