
    HAHN v. CONRIED METROPOLITAN OPERA CO.
    (Supreme Court, Appellate Division, First Department.
    June 5, 1908.)
    1. Master and Servant—Injury to Servant—“Place” to Work.
    A imclge used as a part of the scenery in a play was not a “place” within the rule which requires the master to furnish his employés with a ■safe place to work, but was rather an appliance, such as scaffolding used in the conduct of the work has been held to be.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 179, 200.
    For other definitions, see Words and Phrases, vol. 6, pp. 5386-5387.]
    2. Same—Evidence.
    In an action for injuries to an actor by the giving way of a bridge, a part of the scenery, where the evidence showed that the timber used in its construction was comparatively new, and that it exhibited no visible defects, and that the bridge was designed to hold 50 or 60 people, and that not more than 14 were on it when it broke, the mere happening of the accident is not enough to establish actionable negligence on the part of the defendant.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 881, 898, 955.]
    3. Same—Negligence oe Fellow Servant.
    Where the collapse of a bridge used as a part of the scenery in a play occurred from some careless omission on the part of the stage hands in bolting the structure together, it was negligence of the co-employés of an actor, for which the proprietor of the theater was not liable.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 449-474.]
    Houghton and Laughlin, JJ., dissenting.
    Appeal from Trial Term.
    Action by Jeanette K. Hahn against the Conried Metropolitan Opera Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.
    Reversed, and new trial ordered.
    
      Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
    Theodore H. Lord, for appellant.
    Solon J. Liebeskind, for respondent.
   SCOTT, J.

The defendant appeals from a judgment in favor of plaintiff entered upon a verdict. The defendant was lessee and manager of the Metropolitan Opera House in the city of New York, and' the plaintiff was in its employ as a member of the chorus in the production of the opera “Carmen.” The stage setting of the first act of this opera involves the use of what is apparently a bridge, over which a number of the members of the company, male and female, pass ‘to and fro. This bridge was constructed upon plans designed' by an employé of defendant described as the technical director, and is-set up by the stage hands as required, remaining in position only during a single act. It consists of two platforms or tables, securely fastened to the floor of the stage, about 19 feet apart. Between these run three stringers, stiffened and strengthened by tension rods set up by turnbuckles. On top of the stringers are laid planks constituting the floor of the bridge. This structure is masked in front by painted work in order to present to the audience the appearance-of a bridge. The plaintiff and some other members of the chorus-were standing on this structure, and other members of the company representing soldiers were passing over it, when it collapsed and fell to the sta£e, carrying plaintiff with it. From this accident she received injuries for which she sues.

The plaintiff contented herself with proving .the happening of the accident and the injuries received. The defendant assumed the burden of proving that the bridge was properly constructed. The bridge, as has been said, was constructed after the design of the technical director, who had been engaged in like business for many years, and had had experience in a number of important scenic productions. He described in detail the plan aná method of such construction which it is not necessary to recapitulate here, because no evidence was-produced tending to show any defect in design. It appeared without contradiction that the timber used in the construction was comparatively new, and at least new that season, and that it exhibited no visible defects. It also appeared that the bridge was designed to be of sufficient strength to hold 50 or 60 people, and that not more than 14 were on it when it broke down. A similar bridge had been frequently used in this and other operas without accident. When the bridge was set up by the stage hands, the several parts were bolted together. The mere happening of the accident certainly justifies the inference that there was some defect either in the design or construction of the bridge, or in the manner in which it was put together on the night on which the accident happened; but this is not enough to establish actionable negligence on the part of the defendant. The bridge was not a “place” within the rule which requires the master to furnish his employés with a safe place to work, but was rather an appliance, such as a scaffolding used in the conduct of the work has frequently been held to be. Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017; Benzing v. Steinway, 101 N. Y. 547, 5 N. E. 449; Stringham v. Hilton, 111 N. Y. 188, 18 N. E. 870, 1 L. R. A. 483; Kimmer v. Weber, 151 N. Y. 417, 45 N. E. 860, 56 Am. St. Rep. 630. The duty of the master with reference to such an appliance was fully performed when he had furnished competent and experienced persons to design and construct it, and a sufficient quantity of proper material with which to build it, and there is nothing in the case to justify an inference that the defendant had failed in either of these particulars. On the contrary, all the evidence upon the subject is to the contrary. If the collapse occurred from some careless omission on the part of the stage hands in bolting the structure together, as may have been the case, this was negligence of co-employés of the plaintiff, for which the defendant is not to be held liable, for this was a mere detail of the work, properly intrusted to plaintiff’s fellow servants, for whose negligent performance the master is not responsible. Kimmer v. Weber, supra. The jury was properly instructed as to the extent of the defendants’ liability, but their Verdict was plainly against the evidence in the case.

The judgment and order appealed from must therefore be reversed, and a new trial granted, with costs to the appellant to abide the result.

CLARKE, J., concurs. INGRAHAM. J., concurs in result.

HOUGHTON and LAUGHLIN, JJ„ dissent.  