
    Joseph Warszawski, Plaintiff, v. John J. McWilliams, Defendant.
    
      Negligence — the breaking of aboard on a trestle while an employee is unloading a coal car — when the act of a foreman is that of a fellow-servant.
    
    A man engaged in operating a coal trestle, the floor of which is pierced by many openings, through which the contents of coal cars can be dumped into the bins located under the trestle, is not liable for injuries sustained by an experienced employee, while trying to pry open the.-doors in the bottom of a coal car in order to facilitate the unloading of the car, in consequence of the breaking of one of three boards which, under the direction of a competent foreman, have been placed across one of the openings in the floor in order to enable the employee to stand thereon and to perform his task more conveniently than he could if he stood on the floor of the trestle, where it appears that the boards upon which the employee stood were not supplied by the defendant, but were some of those which had been used to convert box cars into coal cats and had been thrown aside when the box cars were unloaded, and, so far as appeared, had no latent defects, that the employee had frequently seen such boards used for the purpose for which he used them and knew how they were brought there.
    The placing of the boards across the opening was simply an incident of the work, in doing which the foreman was a co-employee of the injured servant, and the master is not liable for any act done or instructions given by the foreman in this respect.
    Motion by the plaintiff, Joseph Warszawski, for a new trial upon a case- containing exceptions, ordered to be heard at the Appellate
    
      Division in the first instance, upon a nonsuit granted by the court after a trial at the Erie Trial Term.
    ■' The action was commenced in July, 1900, to recover damages sustained by the plaintiff in the month of January previous on account of the alleged negligence of the defendant. .
    
      George W. Gillette and John Laughlin, for the plaintiff.
    
      Louis L. Babcock, for the defendant.
   McLennan, J.:

In the month of January, 1900, the defendant was and for several years prior thereto had been engaged in operating a coal trestle situate in the town of Oheektowaga, in the county of Erie. The trestle was a, covered structure, several hundred feet in length, between twenty-five and thirty feet wide, extending east and west,,' anc| was used for the purpose, of unloading coal direct from railroad cars into chutes or storage bins, which were a part of the structure. At an elevation of about forty feet, and directly under the roof of the trestle, a substantial floor was constructed of plank, which extended over the entire space- within the trestle and was supported by timbers extending from the ground to the floor. At the east there was a single .incline track, which extended up to the floor at the easterly end of the trestle, where it branched, and from which point two railroad tracks extended the entire length of the trestle, about the distance from each other that railroad tracks are ordinarily constructed. At short distances from each other, between the rails of each of the railroad tracks, and also between the two tracks and upon the outer side of' each, there were openings into which coal from the cars was dumped or shoveled and dropped into the chutes or bins beneath the floor. At the easterly end of the trestle the openings between the two tracks were narrower than the others on account of the close proximity of'the two tracks where they left the switch and branched from the single incline track. Coal was carried into the trestle by the rise of gondola cars, ordinary flat cars and box cars by running them up the incline and on to one or the other. of the tracks extending through the trestle, .The gondola cars were supplied with doors in the bottom, which were opened by the use of a large wrench applied to an axle, which- extended out to one side of the car, and by turning which a chain was loosened-or unwound, and the weight of the coal forced the door of the car downward and permitted the coal to fall into the opening below. When unloading such a car men were employed, the plaintiff with others, to shovel the coal into the center of the car, and thus cause it all to run out. The coal from the ordinary flat car was shoveled over the side into openings between the railroad tracks, or at the outer side of such tracks. When the ordinary box car was used boards seven or eight feet long, about ten inches wide and an inch thick, called in the evidence “coopering boards,” which had been placed at the doors of the box car to keep the coal in, Were removed and thrown to one side about the trestle, and the coal was shoveled by the men out of the doors of the-box cars and into the holes or openings between the railroad tracks, or into such other openings as were most convenient.

It frequently happened during the winter season that the coal in the gondola cars became frozen so that when the wrench was applied to the cross bar, and the chain which held up the door in the bottom of the car was loosened, the door would not open by the weight of the coal above, and when that occurred it was the practice to take a heavy iron bar and go upon the other side of the car and pry or loosen the doors so that they would drop down and permit the coal to fall into the bins below..

On the day in question a gondola car was at the easterly end of the trestle ready to be unloaded. It stood on the northerly track,

' directly over the first or' most easterly opening, which was about three feet square, and into-which it was proposed to empty the car. Directly south of such opening and between the two tracks thére' was another opening about three feet long and less than two- feet wide, located so close to the northerly track that it was - nearly covered up by the projecting gondola car. Still further to the south, and between the rails of the southerly track, there was another opening about three feet square, and which came to within a- few inches of the middle opening and to one side of the ear. To the' south and east of this southerly opening the floor was solid to the side and end of the trestle. On the west there was a floor space between it and the next opening of two feet. On the-north-there, was a space between it and the middle opening of more than a foot, in width, all o’f which was solidly planked and upon which the employees could go and work in safety..

The plaintiff with two or three other employees-of the defendant got iipon the top of the coal in the gondola car,,ready to shovel the .same toward the. center when the door in the bottom- of the car: should be opened by the use - of "the wrench. There being no one ready to. immediately open the' bottom of-the car, the plaintiff was directed by defendant’s boss or-foreman-to take, the wrench and open the car, He.got down from the top-of'the car, took the wrench ' and attempted ,to open the doors, in the bottom,- but found that the coal was so frozen that the doors would.not open, and he was then directed by the boss to take a bar and go upon the-other side of the car and attempt to open the doors.. In so; doing- it was more convenient to stand over the opening in the floor between the rails of the southerly, track and next to and immediately, south of the car which he was attempting to Unload.. To make it more convenient for him to do such work one of the.“ coopering, -boards,” so called,, many of which were about the trestle, having been thrown .there from box, cars as they were unloaded, was placed across the opening, one end resting upon each rail of the southerly track. The plaintiff saw the board, the manner in which it was placed,' complained that it was too narrow, that he could not turn round upon it, and for. that reason could not properly do the work standing on. it, and two other boards of the same kind were obtained and placed alongside of. it, by direction, of the boss. . The plaintiff then went upon, them-' and commenced, by the- use of the iron.bar, to loosen or open the door in the bottom of the gondola car. While thus engaged one of-the boards upon which he was standing broke and he fell into the, bin below, a distance of some thirty or forty feet, and received the' injuries of which he complains. • • .......

The,evidence, conclusively.;shows- that .the boards on which .the plaintiff stood) those of like character, were : nót plabedAn the trestle or. kept ■ ’there -.by the defendant, for the purpose flor which . they were used at - the .time in .question. . It appear, however, that for a long time prior to the- tim.e.of. this,accident such boards were used by the employees for^such.purpose, to the. knowledge of the defendant. There, is no suggestion in the evidence that there was any latent defect in the boards upon which the plaintiff stood, that they were rotten, knotty, or in any manner defective. They were just what they appeared to be, sound boards about six or seven feet long, eight or ten inches wide and one inch thick, and, so far as appears, were of the ordinary strength of boards of that character. There is no suggestion in the evidence that the boss or foreman was not in all respects competent to perform the duties of such position.

The plaintiff had been in the employ of the defendant for several years prior to the accident, and was engaged in doing substantially the same work, to wit, unloading coal cars in the trestle in question. He was entirely, familiar with the manner of doing the work, had frequently seen boards of the character in question used for the purpose for which he used them, knew how the boards came to be in the trestle, and, so far as appears, was entirely familiar with all the details of doing the work in question. We think these facts fail to establish a cause of action against the defendant, and that the motion for a nonsuit was properly granted.

At the time of the accident the plaintiff and other employees were simply engaged, under the direction of a competent boss, in attempting to open a door in the bottom of a car so that it could be more readily emptied of its load of coal. The method of doing the work and the difficulties which were liable to occur in cáse the coal was frozen were fully understood and known to all concerned. The character of the structure and of all the surroundings was also well known and understood. All the dangers were apparent and were in plain view, and of a character to be readily appreciated. It was perfectly plain to be seen that if a person stepped or fell into one of the many openings in the floor of the trestle, all of which were in plain sight, he would fall to the bottom of the bin or chute underneath and sustain injury.

There was a substantial walk about the opening into which' the plaintiff fell, more or less convenient for the employees to stand upon to perform the work required of them. It was, however, considered-by-the plaintiff and his co^employees that, the car in question could be more conveniently opened if the floor space was enlarged, and one- of the openings therein partially and temporarily closed. To accomplish such purpose they took what was at hand, to wit, three sound inch boards, about ten inches wide. After they were placed in position in the presence of the plaintiff he stepped upon them, and the result showed that they were not strong enough to bear his weight, and in addition the strain which he put upon them by attempting to pry open the door in the bottom of the car, and the accident resulted. There were plenty of other boards of the same character at hand, and if they had been made double or treble thickness over the opening clearly they would not have broken. At all events, they were not furnished by the defendant for the purpose to which they were put, and the plaintiff was quite as able to judge of their strength as any one, and to form such judgment did not require any technical skill or. knowledge. If the defendant had kept strips of lath or one-lialf inch stuff about or in the trestle, an employee could not call upon him to respond in damages, in case he sustained injury while knowingly attempting to: make such strips support his weight, and equally so, although he was aided ■ in the enterprise by defendant’s boss or foreman.

The evidence fails to establish negligence on the part of the defendant. He had a right .to have his coal trestle in precisely the condition in which it was, and, so far as appears by the evidence, he furnished to his employees such appliances as were reasonably necessary for the safe performance of' the work in which they were engaged; and it must be held, under all the circumstances, that the plaintiff assumed the risk incident to the doing of the work upon which he was engaged at the time of the accident; and further, we think it clear, under the authorities, that the placing of the boards across the opening in question was merely an incident of the work, in doing which the boss or foreman of the defendant was a co-employee with the plaintiff, and that the defendant is not liable for his acts, or any instructions which the foreman may have given in respect to such detail. '

Many cases might be cited in support of the foregoing propositions. In Moore v. McNeil (35 App. Div. 323) the rule is stated in the head note as "follows : “ A master is not liable for injuries sustained by a servant in consequence of the breaking of a plank in a scaffold, in the Construction of which the servant was assisting, where there is no evidence that the planks supplied by the master for the erection of the scaffold were unlit for that purpose, and it appears that the selection of the plank which broke from- among those supplied, was the act of the foreman of the gang engaged in constructing the scaffold, or of some member thereof.”

In Stourbridge v. Brooklyn City R. R. Co. (9 App. Div. 129) it was held that a master discharged his duty to a servant when he supplied a sufficient quantity of proper and suitable material, and that the choice of material, the selection of sound beams, the rejection of such beams or parts as were defective, work which'necessarily is involved in the erection of structures of wood, were details of the work and strictly the duty of the fellow-servant.

In Kimmer v. Weber (151 N. Y. 417) it was held that if a mas. tér furnishes his servants suitable materials for the construction of a scaffold on which to do work, and the servants voluntarily construct it according to their own judgment, the master is not liable to the servants for the manner in which they used the material.

In the. case at bar, as we have seen, there were plenty of good boards at hand in order to have made a suitable and sufficiently strong platform over the opening through which the plaintiff fell, if such platform was necessary in the performance of his work. All that "was necessary was to place the boards there at hand one above the other two or three thicknesses, instead of placing only one thickness over the opening.

In Kimmer v. Weber (supra) it was also held that the master is not liable to his servant for the negligent performance of some detail of the work intrusted to the servant, whatever may have been the grade of the servant who executed such detail.

In Golden v. Sieghardt (33 App. Div. 161, 163) the rule is stated by Hr. Justice Rumsey as follows: “ When anything is connected with the work and is an essential part of its performance, is done by persons who are engaged in the prosecution of the work and is necessary to be done to insure the safe completion of the work, that thing is a detail of the work within this rule. Especially is this so when the work itself is the making of a place in which it is to be done. Where that is the case the rule which requires the master to provide a reasonably safe place for his servants in which to -do their work has no application.”

In the case at bar, under the construction of the evidence most fa voidable to the plaintiff, he with the., foreman was engaged in making a place in which to work — a place from which they" could more conveniently open the car in question. If the place thus made by them was unsafe it was their own fault, and the defendant'is not-liable.

To the same effect is Capasso v. Woolfolk (163 N. Y. 472); Kiffin v. Wendt (39 App. Div. 229), and cases cited.

We think the provisions of the Labor Law (Laws of 1897, chap_ 415), to which our attention has been called by the plaintiff’s counsel, have no application to the facts of this case.

It may be doubted whether the plaintiff 'gave sufficient evidence to absolve himself from the charge of contributory negligence. As we have seen, he deliberately walked upon a board, only an inch thick and eight or ten inches in Avidt-h, placed over a hole some forty feet deep, and in addition put upon it the strain caused by attempting to pry open the door of the car with an iron bar, without making any examination or investigation (o ascertain whether. such board was of sufficient strength to support his weight and such strain, and, as we have seen, he did not attempt to make the boards safe, which he could easily have done by putting two.or more boards together, there being plenty of them at hand for that purpose; but it is unnecessary to decide that question, as Ave think for the other reasons stated the. plaintiff’s exceptions should be overruled and judgment directed for the defendant, with costs.

All concurred.

Plaintiff’s exceptions overruled, motion for new trial denied and judgment ordered on the verdict, with costs. '  