
    Luigi Famborille, as Administrator, etc., of Lorete Famborille, Deceased, Appellant, v. Atlantic, Gulf and Pacific Company, Respondent.
    Third Department,
    March 5, 1913.
    Master and servant — negligence — drowning of employee while being transported on water-logged scow—negligence of superintendent in directing scow to be overloaded—negligence in pushing scow from bank — contributory negligence—Employers’ Liability Act.
    A master having assumed the duty of transporting laborers employed by it to a dredge used in the construction of the barge canal by means of boats and scows is bound to use reasonable care in so doing and must employ reasonably safe means of transportation.
    
      It seems, that the master having furnished a scow for such transportation which was not defective except that it leaked and had to be pumped out at intervals, the failure of an employee to pump out the scow before using it to transport laborers whereby the scow careened when pushed into the stream so that one of the laborers was drowned was the negligence of a fellow-servant in a detail of the work. The master is not liable for such negligence, either under the common law or the Employers’ Liability Act.
    But in an action under the Employers’ Liability Act to recover for a death so caused, the master is liable for the negligence of his chief engineer, having powers of superintendence, in ordering such water-logged scow to be overloaded and for his negligence in pushing it with such force as to cause the forward end to dip under water so that the passengers shifted their position to the rear end causing it to settle so that they were precipitated into the water.
    Under the circumstances the jury were authorized in finding the decedent, one of the passengers, free from contributory negligence.
    Since the amendment to the Labor Law made by chapter 352 of the Laws of 1910, a master is liable for an injury to a servant caused by the negligence of a superintendent or any person intrusted with authority, the servant himself being free from contributory negligence.
    As the master assumed to transport its employees to the dredge the intestate was in its service at the time he was drowned and was entitled to the protection of the Employers’ Liability Act.
    Appeal by the plaintiff, Luigi Famborille, as administrator, etc., from an order of the Supreme Court, made at the Sara-toga Trial Term and entered in the office of the clerk of the county of Saratoga on the 17th day of September, 1912, setting aside the verdict of a jury for $2,500 in plaintiff’s favor and granting a new trial of the issues.
    
      James A. Leary, for the appellant.
    
      Charles Irving Oliver, for the respondent.
   Lyon, J.:

Plaintiff’s intestate at the time of his death was a deckhand in the employ of the defendant on its dredge, which was being used by defendant about one mile south of Fort Ann in removing earth from the bottom of the barge canal. The dredge was stationed in the center of the canal, which at that point was about 100 feet wide and filled with water. Plaintiff’s intestate was employed in the day shift and commenced work at eight o’clock in the morning. It was customary for the defendant to take its employees from Fort Ann, where plaintiff’s intestate resided, to the dredge on a steam tug, but when that was not done the men were accustomed to walk along either the east or west bank of the canal until opposite the dredge, when a boat was sent to take them over to it. It was also claimed by the defendant upon the trial that a third way in which the employees might reach the dredge was by walking upon a line of twenty-inch round iron pipe, supported at intervals upon barrels, which at this time extended from the east bank. of the canal to the dredge. As there was no rope above the pipe or other means by which a person walking upon the pipe could steady himself, and as this course was very infrequently used by any of the workmen, consideration of this method of reaching the dredge may well be eliminated. It had been customary for the defendant to place- the men upon the dredge rather than to require any of them to furnish his own transportation from the bank to the dredge. When the steam tug was out of commission it was customary for any of the workmen who happened to be on the dredge to take a boat and go over to the bank and carry the men to the dredge, and that duty had not been delegated by the defendant to any one employee.

Upon the morning of October 31, 1911, defendant’s steam tug being disabled, did not run, and plaintiff’s intestate, in company with one Kennedy, defendant’s chief engineer, and seven other employees upon the dredge, walked down the west bank of the canal to a point opposite the dredge, when one Anastasia, a coalpasser, frequently referred to in the evidence as the Greek, who was working in the night shift, seeing the men on the bank, without any instruction so to do, took a scow, which was frequently used for that purpose, and which was fastened on the west side of the dredge, and went across to the bank to take the men-to the dredge. There were at the time two or three open flat-bottom boats, twelve to fourteen feet long, in good condition, each of which would carry five or six men, upon the opposite or easterly side of the dredge. This scow, which was made by the defendant’s carpenter, was flat-bottomed, rectangular, fourteen feet long, five feet wide, eighteen inches deep, with the ends somewhat sloping, constructed of hemlock plank three inches thick on the • sides and ends and two inches thick on the bottom, with a flat deck also two inches thick, supported by the sides of the boat. The seams in the deck, bottom and sides of the scow were caulked and pitched, and it was nearly water-tight, but required pumping out frequently, some of the witnesses testifying one or more times daily, for which purpose a hole had been bored through the deck, which was kept plugged when the pump was not being used. The scow, when pumped out and not loaded, drew from six to eight inches of water and the deck was about ten inches above the water. Upon the morning referred to the deck was somewhat slippery from the rain of the preceding night and there was more or less water in the scow, a witness for the plaintiff testifying that the boat before the workmen got on stood only about five inches out of the water and that with the nine men on it stood only three inches out of the water, and that he could hear the water swash in the boat as it was pushed off. When. the scow reached the bank deceased was one of the first three persons to get on it. One of plaintiff’s witnesses testified that when six persons had got on the boat Scacci, one of the two men still on the bank, objected to getting on, whereupon Anastasia said “don’t be afraid,” and Kennedy, who was standing with his foot on the rope attached to the boat, preventing it from moving out, said “all right, come on, don’t be afraid. ” Thereupon Scacci stepped on. Then Angelo, the remaining man upon the shore, objected to getting on, whereupon Kennedy said “get right on, do not be afraid, the boat won’t sink,” whereupon Angelo got on, the men passing sufficiently forward to give the boatman an opportunity to place the oar by which the scow was sculled in its place upon the shore end of the boat and also space in which to operate the oar. Kennedy then stepped on the boat, making nine persons thereon, and it was pushed off, either by Kennedy with his foot, as he testified, or by Anastasia by placing his oar against the bank, as another witness testified, and with sufficient force to carry it ten or fifteen feet. While going that distance the forward end of the boat dipped two or three inches under the water, whereupon the persons on that end of the boat shifted their positions quickly to the shore end of the boat, which settled and slid from under the men, precipitating them all into the water, which at that place was ten or fifteen feet deep. Relieved of its load the boat immediately arose, righted itself and floated. Plaintiff’s intestate and Anastasia, the boatman, were dro.wned. That the scow had water in it at the time it was taken from the dredge to the bank seems to have been firmly established by the evidence. A witness testified that when the shore end of the boat settled he could hear the water in the boat rush to that end. Two witnesses testified to having seen it pumped out immediately after the accident: Other witnesses testified that the scow had been in constant use, and that when there was no water in it ten to twelve men and even heavier loads had been safely carried on it, and that as before stated when pumped out and free from load the deck stood five inches higher than on the morning of the accident.

Three questions were submitted to the jury:

1. As to whether the boat furnished to convey plaintiff’s intestate from the bank to the dredge was reasonably safe for that purpose.

2. As to whether Kennedy had authority to direct the men to get on the boat, and if so whether he gave orders which induced the overcrowding and sinking of the boat.

3. As to whether deceased was free from contributory negligence.

No exception whatever was taken by either party to any portion of the charge, and there are no exceptions in the case requiring consideration other than that taken at the close of the- evidence to the refusal of the court to grant a nonsuit. -

At the request of the defendant the court further charged the jury that the master did not guarantee the safety of its employees, and was not bound to furnish an absolutely safe place to work, and was only bound to exercise reasonable care and prudence in furnishing a safe place to work; that a master is not liable when one of his employees, without authority, express or implied, assumes to direct another employee to work in a place which may be unsafe; that the negligent act must be one pertaining to superintendence, and that there is no liability when the act is subject of performance by one of any subordinate employees, and includes no element of superintendence; that if one employee is injured through the negligence of another employee so that the fellow-servant rule comes in, the master is not liable to A if another employee of the same grade, namely, B, is negligent—he is only liable when the employee is of such standing in his service that he really is the master for that work, and when such man is negligent then the employee may recover from the master; and that if there was any danger, and that danger was perfectly obvious and apparent to the deceased, and the jury find it was known to him, it is then deemed to have been assumed by him. The court submitted the case to the jury upon the theory that the overloading of the scow, which caused its sinking and the drowning of the deceased, was due to the order of Kennedy, for whose negligence the defendant was responsible. The jury rendered a verdict for plaintiff of $2,500. The court thereupon, upon the application of defendant, granted an order setting aside the verdict and granting a new trial “upon the exceptions taken by the defendant upon the trial herein and upon the ground that the said verdict is contrary to law. ” From such order this appeal has been taken.

The court based its action in setting aside the verdict upon the ground that even if Kennedy could be held to have been the defendant’s superintendent, the act or omission complained of, in order to make the defendant liable, must have occurred in the course of the performance of the master’s service, whereas Kennedy, like deceased, was a mere passenger upon the scow, being carried to his work, and was not engaged by the defendant to superintend or to do any service whatever in relation to the scow in question, and had no authority to direct employees to embark thereon.

The action was brought under the provisions of the Labor Law relating to employers’ liability for injuries. The defendant having assumed the duty of transporting the laborers to the dredge became bound to the use of reasonable care in so doing, and this contemplated' the employment of a reasonably safe means of transportation. For this purpose in part the defendant had provided in addition to the steam tug, the scow and the open boats, and a pump as the means of freeing the scow of water. There is no evidence that any defect whatever existed in any of them. Under the proof, the disaster occurred by reason of overloading the scow, coupled with the impetus given it as it left the bank. The water in the scow did not render it defective, but simply lessened, its carrying capacity when dry by the weight of the water in the boat. The negligence of Anastasia so far as it contributed to overloading the scow was the negligence of a fellow-servant, and any negligence attributable to him in using the scow instead of one or both of the open boats, or neglect to free it of water, was the negligence of a servant in a detail of the work. For neither of these would the master be liable, either under the common law or the Employers’ Liability Act. (Cullen v. Norton, 126 N. Y. 1; Dair v. New York & Porto Rico Steamship Co., 204 id. 341; Vogel v. American Bridge Co., 180 id. 373; McConnell v. Morse Iron Works & Dry Dock Co., 187 id. 341; Quinlan v. Lackawanna Steel Co., 191 id. 329.)

However, a very different question arises as to the liability of the defendant for any negligent act of Kennedy resulting in the death of plaintiff’s intestate. Kennedy was defendant’s chief engineer and had been in its employ for upwards of four years. He had charge of the machinery of the dredge and gave orders relating thereto. Witnesses testified that under him were the engineers, levermen, oilers and coalpassers. O’Connor, an oiler, testified that Kennedy was defendant’s superintendent. Witness Scacci, a deckhand, designated him as the “big boss.” Kennedy himself testified regarding his authority: “When the captain was away there was nobody that was superior to me in my department. There was not in any department. When the captain was there in charge he was not superior to me in my department. He did not have anything to do with the other department. There was no man that I would take orders from when the captain was not there. These deckhands had worked for me at times, had assisted in making repairs in different ways. * * * I would not tell them when I wanted a particular work done, the things they had to do. If I wanted anything done I would not give the deckhand an order. Did not have to do that. When I wanted to have any work done I supervised the work, how it should be done. Covering all the details of the work.” Carlson, the captain, had not come that morning at the time Kennedy and the men went upon the scow, but came along the bank soon after the accident occurred. Kennedy was, therefore, at the time of the accident concededly in charge of the plant and of all the men in the employ of the defendant, and the jury was warranted in finding that he was the man in authority at that time. The jury was also warranted in finding that Kennedy was negligent in directing the overloading of the boat, three of the nine men being Kennedy, and two men, Anastasia and O’Connor, who were directly subject to his orders when at work on the dredge; also in finding that the act of Kennedy in pushing the scow with such force as to carry it ten feet from the bank, causing it to dip water at the forward end, naturally occasioning the shifting of the men to the rear end of the boat, was a negligent act. The jury was also authorized in finding that plaintiff’s intestate was free from contributory negligence.

The verdict having been set aside as contrary to law, all questions of fact are deemed established in favor of plaintiff, and the single question for determination upon this appeal is whether the defendant is legally liable for such negligent acts of Kennedy.

Prior to the passage of chapter 352 of the Laws of 1910, amending the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 3G], art. 14), it was required in order to render the master liable for the negligent act of a superintendent, that he be at the time of the commission of such act actually exercising superintendence. By such amendment this requirement was omitted and subdivision 2 of section 200 of the Labor Law as so amended extended the liability of the master to injury or death occurring by reason of the negligence of any person in the service of the employer intrusted with any superintendence, or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee. The wording of the amendatory act is not vague or indefinite. It is stated in the first report of the commission established by chapter 518 of the Laws of 1909, entitled “An act to establish a commission to inquire into the question of employers’ liability,” etc., as follows (p. 59) : “We are, however, clearly of the opinion that in all trades the master should be responsible for the acts of any person who has in any degree power of superintendence over other servants, under the doctrine of respondeat superior. Under the law of the State of New York as it now stands, as shown, for instance, in Quinlan v. The Lackawanna Steel Company, 191 N. Y. 329; Foster v. International Paper Co., 183 N. Y. 45; Vogel v. Am. Bridge Co., 180 N. Y. 373, and others, and under the exact language of Sec. 2 of § 200 of the Employers’ Liability Act as it now stands, the employer is only responsible when the superintendent is actually exercising superintendence. We think that distinction too limited, and that the employer should be responsible for all accidents caused by any person entrusted with any authority * * * and we think to that extent at least the fellow servant rule should be modified, and so recommend. * * * In the Federal law, the fellow servant defense has been abrogated entirely. * * * In the recommendations proposed for the amendment of this act, shown, for instance, in the bills introduced at successive sessions for this purpose, looking toward amending this section, there has been contained an express declaration of the legal principle that superintendents should be regarded as vice-principals and not fellow servants. We do not regard that language as essential to accomplish the result above outlined. ” The Legislature of 1910, to which this report of the commission was made, evidently adopted the views of the commission, as the Legislature thereupon enacted chapter 352, which followed the precise wording of the act proposed by said commission in its report.

It must be held, therefore, that under the amendment of 1910 the master is liable for an injury to a servant caused by the negligence of a superintendent or any person intrusted ■with authority, the servant himself being free from contributory negligence. But the defendant contends that plaintiff’s intestate was not in the service of the defendant at the time he met his death, hut was simply on his way to his work, and hence was not within the protection of the statute. As before stated, the master had assumed to transport plaintiff’s intestate and the other workmen to the dredge by steam tug from Fort Ann when the tug was in commission, and when not, by this scow or an open boat from the bank to the dredge. Such action by defendant was in the line of its duty, and was a necessary incident to the employment of deceased and to the service which he was to perform and connected with it. (Vick v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 267; McDonald v. Simpson-Crawford Co., 114 App. Div. 859; McGuirk v. Shattuck, 160 Mass. 45.)

Hence, while being transported by the defendant from the bank to the dredge, deceased must he regarded as having been in the service of the defendant, and the defendant obligated to the exercise of reasonable care in transporting him safely.

Plaintiff’s intestate having met his death while an employee of the defendant- by reason of the negligent acts of defendant’s superintendent while both were engaged in the master’s service, the jury having found that the deceased was free from contributory negligence, the plaintiff was entitled to recover.

The order setting aside the verdict and granting a new trial should be reversed and the verdict reinstated.

All concurred.

Order reversed and verdict reinstated, with costs in this court and at the Trial Term.  